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HomeMy WebLinkAboutContract 41256 (2)CITY SECRETARY CONTRACT TRUST FUND AGREEMENT THIS TRUST FUND AGREEMENT (this "Agreement") is made and entered as of the 15th day of December, 2010, by and between the CITY OF FORT WORTH, TEXAS, a Texas home -rule municipality (the "City") and NORTH TEXAS SUPER BOWL XLV HOST COMMITTEE, INC., a Texas nonprofit corporation (the "Host Committee"). RECITALS WHEREAS, the National Football League, an unincorporated, not -for -profit association (the "League") owns, produces and controls its annual professional football championship game known as the "Super Bowl" and all rights relating thereto on an exclusive, worldwide basis; and WHEREAS, NFL Properties LLC, a Delaware limited liability company ("NFLP", or together with the League, the "NFL") owns, produces and controls the NFL Experience and certain other events related to the Super Bowl; and WHEREAS, pursuant to an application by the Host Committee, after considering through a highly competitive selection process one or more sites that are not located in the State of Texas, the League formally selected the North Texas Region as the sole site for Super Bowl XLV (2011), including the following (collectively and each interchangeably, the "Event"): the Super - Bowl XLV game and all officially sanctioned events staged by the NFL or the Host Committee in connection with Super Bowl XLV, including but not limited to the NFL Experience, the NFL Friday Night Party, the NFLP Saturday Night Parties, the NFLP Tailgate Party, the NFL On Location Hospitality Events, the Super Bowl Concert Series, the NFL Charity Golf Tournament, NFL Charities Bowling Tournament and such other events, media events, musical performances, film shoots, rehearsals and any other events, competitions and activities related thereto or associated therewith as may be determined by the NFL; and WHEREAS, the Super Bowl is held not more than one time in any year; and WHEREAS, the NFL and the Host Committee have entered into that certain Super Bowl XLV Host Committee Agreement (as amended, the "Event Support Contract") dated May 25, 2007, setting out representations and assurances by the Host Committee in connection with the selection of the North Texas Region for the location of the Event; and WHEREAS, TEX. REV. Crv. STAT. art. 5190.14, § 5A (as amended, the "Act") authorizes the Texas Comptroller of Public Accounts (the "Comptroller") to establish the Major Events Trust Fund (as defined in the Act) for the Event (the "Fund"); and WHEREAS, the Comptroller determined under Subsection (b) of the Act that 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 directly attributable to the preparation for and presentation of the Event is $1,344,450.00; and OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX WHEREAS, to support the Event, the Fort Worth Convention and Visitors Bureau has made a contribution to the Host Committee of $167,000 from the proceeds of City hotel occupancy tax receipts (the "CVB contribution"), and WHEREAS, in consultation with the NFL and various governmental authorities, the City and the Host Committee have jointly prepared the plan attached hereto as Exhibit "A" (the "Event Plan"), which identifies the incremental staffing to be provided by the City for the provision of incremental public safety, incremental emergency medical, incremental emergency management, incremental crowd and traffic control, and other incremental City services necessary for the Event; and WHEREAS, the Event Plan contains a budget for all direct incremental costs to be incurred by the City in connection with implementation of the Event Plan (the ' City Budget"); and WHEREAS, the City and the Host Committee desire to enter into this Agreement to set forth the rights and obligations of the parties to take required actions under the Act and to fulfill obligations under the Event Support Contract; and WHEREAS, pursuant to M&C approved on December 14, 2010, the City Council of the City approved the Event Plan and authorized execution of this Agreement by the City Manager. 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: Section 1. Term. This Agreement shall remain in full force and effect until the later of: (i) December 31, 2011, or (ii) such date as all funds have been disbursed from the Fund pursuant to the Act. Section 2. Implementation of Event Plan. The City and the Host Committee hereby approve the Event Plan. The City will implement the Event Plan for the Event and will provide all services identified in the Event Plan in accordance therewith. The Event Plan can be amended from time to time by the mutual written consent of the City and the Host Committee. Section 3. Reimbursement of City Costs. Not later than the 75th day after the last day of the Event, the Host Committee will remit to the City $70,000 from proceeds of the CVB Contribution. To provide funding for purposes eligible under the Act, not later than five (5) business days after the Host Committee has remitted such amount to the City the City will remit $730,000.00 to the Comptroller for deposit into the Fund (the "City Remittance'). The term "City Costs" means all direct costs actually incurred by the City in connection with incremental City services provided for or in support of the Event in accordance with the Event Plan. The City and the Host Committee will reasonably cooperate with each other toward keeping the City Costs within the amount of the City Budget. The City will be reimbursed from the Fund on a first -priority basis for City Costs up to the amount of the City Budget (i.e., up to a total of $2 260,669.00). Additionally, if due to a Force Majeure event or due to the addition of activities to the Event by the Host Committee (or by the NFL through the Host Committee) the City Costs exceed the amount of the City Budget, the City will be reimbursed from the Fund on a first - priority basis for such City Costs to the extent of State tax revenues deposited into the Fund as a consequence of the City Remittance (in accordance with Subsection (f) of the Act). Section 4. Force Majeure. The term "Force Majeure" means acts of public enemy, terrorism, riot, mob violence explosion, fire, tornado, flood or other natural disaster occurring in Dallas County or Tarrant County, Texas or elsewhere within the jurisdictional limits of the City during the Event. If due to a Force Majeure event the City actually incurs additional (i.e., above and beyond those contemplated in the Event Plan) direct incremental costs in connection with incremental City services provided for the Event, such costs shall be deemed City Costs. Section 5. Responsibilities and Authorizations Concerning the Fund. The City will deal with the Comptroller with respect to (i) requests for reimbursement from the Fund for the City Costs on a first -priority basis up to the amount of the City Budget; and (ii) disbursements from the Fund in connection with any such requests. The Host Committee will direct the Comptroller to process such City requests before making any disbursement from the Fund to the Host Committee. With respect to City Costs that are reimbursable in accordance with the last sentence of Section 3, the City and the Host Committee will jointly deal with the Comptroller, subject to the provisions of Section 6 below. With respect to all other sums deposited into the Fund, the City hereby authorizes, directs and designates the Host Committee to deal with the Comptroller with respect to: (a) requests for reimbursement from the Fund for purposes eligible under the Act; and (b) disbursements from the Fund in connection with any such requests. The City agrees that this authorization, direction and designation shall constitute the prior approval of the City, as an endorsing municipality, for disbursements from the Fund, in satisfaction of the requirements of the Act. Section 6. Dispute Resolution Procedure for City Costs. Not later than 60 business days after the conclusion of the Event, the City will deliver to the Host Committee a written report (the "City's Report") that identifies the City Costs and compares, on an itemized basis, the City Costs to the City Budget. Within 10 business days after the Host Committee's receipt of the City's Report (the "Dispute Notice Period"), the Host Committee will notify the City whether: (i) the Host Committee agrees with the City Costs as set forth in the City's Report or (ii) the Host Committee rn good faith disputes the City Costs as set forth in the City's Report If the Host Committee fails to provide the foregoing notice within the Dispute Notice Period the City Costs set forth in the City s Report will conclusively be deemed the City Costs If the Host Committee timely notifies the City of the Host Committee s good faith dispute of the findings of the City's Report (such notice being the "Dispute Notice"), the City and the Host Committee will negotiate in good faith to resolve such dispute. Section 7. 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. Section 8. Governing Law. The Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, without regard to conflict of laws principles. Tarrant County, Texas shall be the exclusive venue for suit on or in respect of this Agreement. The parties hereto each irrevocably agrees that any legal proceeding in respect of this Agreement shall be brought in the district courts of Tarrant County, Texas, or the United States District Court for the Northern District of Texas, Fort Worth Division and irrevocably submits to the jurisdiction of such courts. Section 9. Non -Exclusive Remedies. Except as otherwise provided herein, 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 foi breach by a party of its obligations hereunder may be inadequate in view of the complexities and uncertainties in measuring the actual damages which 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 are expressly 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. Section 10. Mutual Waiver of Certain Damages. THE CITY AND THE HOST COMMITTEE EACH HEREBY EXPRESSLY, IRREVOCABLY, FULLY AND FOREVER RELEASES, WAIVES AND RELINQUISHES ANY AND ALL RIGHT TO RECEIVE PUNITIVE, EXEMPLARY AND CONSEQUENTIAL DAMAGES FROM THE OTHER (OR ANY PAST, PRESENT OR FUTURE BOARD MEMBER, TRUSTEE, DIRECTOR, OFFICER, EMPLOYEE, AGENT, REPRESENTATIVE OR ADVISOR OF THE OTHER) IN ANY CLAIM DEMAND, ACTION, SUIT PROCEEDING OR CAUSE OF ACTION IN WHICH THE HOST COMMITTEE AND THE CITY ARE PARTIES, WHICH IN ANY WAY (DIRECTLY OR INDIRECTLY) ARISES OUT OF, RESULTS FROM OR RELATES TO ANY OF THE FOLLOWING, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL BASIS: THIS AGREEMENT; ANY PAST, PRESENT OR FUTURE ACT, OMISSION, CONDUCT OR ACTIVITY WITH RESPECT TO THIS AGREEMENT; ANY TRANSACTION, EVENT OR OCCURRENCE CONTEMPLATED BY THIS AGREEMENT; THE PERFORMANCE OF ANY OBLIGATION OR THE EXERCISE OF ANY RIGHT UNDER THIS AGREEMENT; OR THE ENFORCEMENT OF THIS AGREEMENT. Section 11. Time of the Essence. Time is of the essence with respect to the obligations of the Parties to this Agreement. However, if a date specified or computed under this Agreement for the performance of an obligation by any party, or for the occurrence of any event provided herein, shall be a Saturday, Sunday or "legal holiday" (defined for purposes hereof as any holiday observed by the City) then the date of such performance or occurrence shall automatically be extended to the next calendar day that is not a Saturday, Sunday or legal holiday. Section 12. 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. Section 13. 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 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. If to the City: City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Attention: Tom Higgins, Deputy City Manager with a copy to: City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Attention: Peter Vaky, Assistant City Attorney If to the Host Committee: North Texas Super Bowl XLV Host Committee, Inc 2911 Turtle Creek Blvd., Suite 1000 Dallas, Texas 75219 Attention: William H. Lively, President with copy to: Winstead PC 5400 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 Attention: Denis C. Braham, Chairman and CEO Section 14. Parties in Interest. The terms of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their permitted successors and assigns. This Agreement may not be assigned by the City. The Host Committee may not assign this Agreement but may collaterally assign and/or pledge the Host Committee's (and not the City's) interest in this Agreement to secure the obligations of any credit facility of the Host Committee Nothing in this Agreement, whether express or implied shall be constructed to give any person or entity (other than the parties hereto and their permitted successors and assigns) any legal or equitable right, remedy or claim under or in respect of any terms or provisions contained in this Agreement or any standing or authority to enforce the terms and provisions of this Agreement. Section 15. Review of Host Committee Expense Budget. The Host Committee has provided the City with the opportunity to review, and will, as of January 14, 2011 and March 1, 2011, provide the City additional opportunities to review the Host Committee s then-cu-rent expense budget presented in the following categories: (i) Event expenses in the City of Fort Worth; (ii) Event expenses in other municipalities, categorized by individual municipality; (iii) Host Committee Event expenses; and (iv) capital improvements to fulfill obligations under the Event Support Contract. In addition, the City will have the nght, from time to time until December 31 2011, upon reasonable notice and during normal business hours to inspect books and records directly related to any of the following: (a) the City Costs; (b) capital expenses to be reimbursed from the Fund for improvements to fulfill obligations under the Event Support Contract; or (c) reimbursements from the Fund received by the Host Committee if the City has not been fully reimbursed for the City Costs. The Host Committee agrees to maintain such books and records foi City review for such purposes until December 31, 2011. The Host Committee will furnish the City with a copy of the Host Committee's independent audited annual financial statements for the Host Committee's fiscal years 2010 and 2011 as soon as practicable after such statements are finalized. The Host Committee has engaged a consultant to perform a post -Event analysis of Event -related projections to available post -Event data; and the Host Committee shall furnish a copy of such consultant's final report to the City as soon as reasonably practicable following completion. Section 16. Recognition of North Texas Regional Efforts. The Host Committee will use commercially reasonable efforts to call -on the NFL to request its media partners recognize the site of the Event as "North Texas' and identify the proper geographic locations of official venues for the Event. Section 17. General. Terms with initial capital letters are defined terms Words or phrases in quotations marks indicate the definition of a tent. A defined tenn has the same meaning throughout this Agreement, may appear in this Agreement before its definition and applies to all grammatical variations of the teen also shown with initial capital letters. The masculine, feminine and neuter genders used in this Agreement each includes the masculine, feminine and neuter genders, and whenever the singular number is used, the same shall include the plural where appropriate, and vice versa. Wherever the term "including or a similar term is used in this Agreement, it shall be interpreted to mean "including, without limitation." The words "shall" and "will" as used in this Agreement have the same meaning and are mandatory, and the word "may" is permissive. The headings used in this Agreement are included foi reference only and shall not be considered in interpreting, applying or enforcing this Agreement. This Agreement shall not be modified or amended in any manner except by a writing signed by all the parties hereto. This Agieement represents the entire and integrated agreement between the parties with respect to the subject matter hereof. All prior negotiations, representations or agreements not expressly incorporated into this Agreement are hereby superseded and cancelled. The parties acknowledge and represent that this Agreement has been jointly drafted by the parties, that no provision of this Agreement will be interpreted or construed against any party solely because the party or its legal counsel drafted such provision and that each of them has read, understood and approved the language and terms set forth herein. This Agieement may be executed in multiple counterparts, each of which shall constitute but one agreement. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] EXECUTED to be EFFECTIVE of the date set forth in the introductory paragraph of this Agreement: APPROVED AS TO FORM: Peter Vaky, Assistant City Attorney tesy) c-zq66s- [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLAN. CITY OF FORT WORTH, TEXAS Tom Higgins, Deputy City Manager Attested by: VAA • Marty Hendri ' CitySecretaiy-�-�.' AvieW010):4114 -.� ids/ 0a 0 LIS fig0 0 4tibiirtiaireci OFFICIAL RECORD CITY SECRETARY Signature Page — Trust Fund Agreement -7 NORTH TEXAS SUPER BOWL XLV HOST COMMITTEE, INC. By: [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] Signature Page — Trust Fund Agreement -8- Exhibit "A" Event Plan Fire Department -Fire Operations -EOD Bomb Squad OT -Omni Fort Worth Police Department -Administration/Finance -Omni Bi anch -Mounted Patrol -Documentation Unit -Traffic Branch -Mobile Field Force -Communications -Intel -EOC -Downtown TCT -Bike Patrol -Hospitality/LEOS -SWAT $139,810 $1,676,776 -EPIC -PIO -VICE -SWAT -JOC -Credentialing -Counterfeit Investigations -NPO's -Relief Personnel -Community Events -Air Support -K-9 Ti ansportation & Public Works $226,000 -Street Sweeping -Message Boards -Barricades for Omni and Houston St. locations -Overtime -Sanding/Snow Removal Parks & Community Services .$62,190 -Maintenance and Cleanup -Transportation for Public Safety Individuals -EOC Overtime The T -Regional Transportation Contingency -TCU Branch (police) -Executive Protection (police) -Med Star TOTAL $2,260,669 . $31,680 $124,213 Savings realized in one category of this Event Plan may be applied to another category should category expenses exceed the amount specified However, the City shall not be reimbursed from the Fund more than a total of $2,260,669, unless otherwise expressly pro\ ided in the last sentence of Section 3 of this Agreement. The City may use qualified personnel from any City department to furnish the foregoing services Exhibit "A" — Event Plan Cover Page 1060233v.6 M&C Review Page 1 of 2 rL Tv COUNCIL AGENDA COUNCIL ACTION: Approved on 12/14/2010 Official site of the City of Fort Worth, Texas FORT WO RT II DATE: 12/14/2010 RLFERFINCF. NO.: C-24665 LOG NAME: 25TRUSTFUNDAGREEMENT CODE: C TYPE: NON- PUBLIC NO CONSENT HEARING: SUBJECT: Authorize Execution of Trust Fund Agreement with the North Texas Super Bowl XLV Host Committee, Inc., for Reimbursement of Certain Super Bowl -Related Expenses RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute the attached Trust Fund Agreement with the North Texas Super Bowl XLV Host Committee, Inc., for reimbursement to the City of certain Super Bowl -related expenses. DISCUSSION: State law authorizes the Texas Comptroller of Public Accounts to establish a Major Events Trust Fund (the Trust Fund), which is designed to help Texas counties and municipalities defray costs associated with hosting certain major events, including a Super Bowl. The Trust Fund is set up so that endorsing municipalities of major events deposit a sum not to exceed the anticipated tax increment that the municipalities are anticipated to receive as a result of the event. In turn, the State deposits State tax increments anticipated on account of the event. All sums deposited into the Trust Fund, including the State's deposits, are then available to reimburse the endorsing municipalities and any local organizing committee of the event for costs incurred as a result of the event. The Comptroller has determined that the City will benefit from incremental increases in certain sales and use, hotel occupancy and mixed beverage tax receipts of approximately $1,344,450.00 because of Super Bowl XLV. Additionally, the North Texas Super Bowl XLV Host Committee, Inc. (the Host Committee), which is the regional organizing entity for the Super Bowl, will provide the City with $70,000.00 from the initial Convention & Visitors Bureau's contribution toward the cost of the local match requirement. In consultation with the NFL and various governmental authorities the City and the Host Committee have jointly prepared an Event Plan that identifies the incremental staffing to be provided by the City for the provision of incremental public safety, incremental emergency medical, incremental emergency management, incremental crowd and traffic control, and other incremental City services necessary for the event. Total costs under the Event Plan are $2,260,669.00. The Event Plan is attached as an exhibit to the proposed Trust Fund Agreement. After the Super Bowl, the City will remit $730,000.00 to the Comptroller for deposit into the Trust Fund. The City costs actually incurred by the City in connection with the incremental City services provided for the event will be reimbursed from the Trust Fund on a first -priority basis up to the amount of the City budget of $2,260,669.00. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that this action will have no material effect on City funds. TO Fund/Account/Centers FROM Fund/Account/Centers http://apps.cfwnet.org/council_packet/mc review.asp?ID 14552&councildate-12/14/2010 12/15/2010 M&C Review Page 2 of 2 Submitted for City Manager's Office by: Susan Alanis (8180) Originating Department Head: Kirk Slaughter (2501) Additional Information Contact: Kirk Slaughter (2501) ATTACHMENTS 25Super Bowl Trust Fund Agreement Final clean.DOC http://apps.cfwnet.org/council_packet/mc_review.asp?ID=14552&councildate=12/14/2010 12/15/2010