HomeMy WebLinkAboutContract 43813 (2)T
CITY SLCRRTARY
CONTRACT NO.
UST FUND EVENT SUPPORT CONTRACT
This T UST MIND JKVlENT SUPPORT CONTRACT ("Agreement") is made and
entered by and between the CITY IF II1ORT VV RTII (the "City"), a home -rule municipality
organized under the laws of the State of Texas and APPALOOSA HORSE CLUB (ApHC)
("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 Appaloosa Horse Club World Championship Show (the
"Event"), and occurs not more than one time 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 Will Rogers Memorial Center to serve as the sole venue for the Event.
C. The Event is held not more than one time in Texas or an adjoining state in any
year.
D. Company has engaged Gerald L. Grotta, Ph.D. of Grotta Marketing Research
("Grotta") to prepare an Analysis of the Economic Impact of the Event for purposes of
submitting to the Texas Comptroller of Public Accounts (the "Comptroller") to determine
eligible Texas state tax revenues generated by the Event.
E. TEx. REV. Civ. STAT. art. 5190.14, § 5C, as amended (as it may be amended from
time to time) (the "Act") authorizes the Comptroller to establish the Events 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.
F. The Act provides that the money in the Fund may be used for "...the payment of
costs relating to the preparations necessary or desirable for the conduct of the event and the
payment of costs of conducting the event, including improvements or renovations to existing
facilities or other facilities and costs of acquisition or construction of new facilities or other
facilities" (the "Permissible Uses"). Company and the City have jointly prepared the plan
attached hereto as Exhibit "A" (the "Event Plan"), which outlines the Permissible Uses that 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 Company to conduct the Event.
G. Pursuant to Resolution No. 3 513-08-2007 adopted on August 14, 2007, the City
Council of the City has authorized the City Manager to negotiate agreements that promote major
Trust Fund Event Support Contract
City of Fort Worth and Appaloosa Horse Club
"I U-129-1 2 POD :
OFFICIAL RECORD
CITY SECRETARY
Paal 0 _
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:
1. RECITALS.
AGREEMENT
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 the 5th of March, 2012 and shall remain in full force
and effect until the later of (i) December 31, 2012 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 Comptroller for the creation of one or more Events
Trust Funds (each an "ETF") for the Event under the provisions of Act.
4. TRUST FUND DEPOSIT.
In consideration of Company's selection of Will Rogers Memorial Center as the sole site
for the Event the City will remit a total of $14,276.00 for the Event to the Comptroller, as set
forth in the March 5, 2012 letter that was issued by the Comptroller 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 ETF(s) under the terms of the Act. The City Remittance plus
the contributions by the State of Texas to the ETF(s) in accordance with the Act shall be referred
to herein as the "Total Fund Amount."
5. DISTRIBUTION OF TOTAL FUND AMOUNT.
a. The City shall be responsible for distributing the Total Fund Amount to
reimburse the City and Company for actual expenses related to the Event as permitted by the
Act and consistent with the Permissible Uses as generally outlined in the Event Plan. The
method and priority of funds to be distributed shall be a determination made by the City in its
sole discretion. Any distribution to the Company will be made within ten (10) business days
following receipt by the City of the Total Fund Amount and sufficient expense documentation by
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City of Fort Worth and Appaloosa Horse Club Page 2 of 10
Company. The City will be responsible for dealing with the Comptroller with respect to
disbursements from the Fund.
b. 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) 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 Parties. 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 section 5(a)(ii), 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 this Agreement shall
automatically terminate and Company hereby waives it right to receive any distribution from the
Total Fund Amount.
6. OBLIGATIONS OF COMPANY.
In consideration of the benefits set forth herein, Company will use commercially
reasonable efforts to conduct the Event during the Term at Will Rogers Memorial Center.
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.
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.
S. 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
are expressly made enforceable by specific perfonnance. 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.
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9. TERMINATION FOR CAUSE
The City may terminate this Agreement if Company fails to comply with any term,
provision, or covenant of this Agreement in any material respect. If an event of default occurs,
City shall give written notice that describes the default in reasonable detail to the Company. The
Company must cure such default within thirty (30) calendar days after receiving notice from
City, unless otherwise agreed to in wasting by the parties.
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 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:
City of Fort Worth
Attn Director, Public Events Dept.
1000 Throckmorton
Fort Worth, TX 76102
with copies to:
the City Manager and
the City Attorney
at the same address
Appaloosa Horse Club:
Appaloosa Horse Club
Attn Keri LeForce
2720 West Pullman Road
Moscow, ID 83843
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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 JURISDICTION.
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
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 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, 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.
18. INTERPRETATION.
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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; provided, however, that the Term Sheet
Regarding Use of Events Funds from the State of Texas under the Act between the City and
Company dated July 15th, 2008 shall not be superseded by 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.
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
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REAL OR ASSERTED, ARISING OUT OF, IN CONNECTION WITH, OR RESULTING
FROM ANY ACT, ERROR, OR OMISSION OF COMPANY AND ITS RESPECTIVE
OWLCERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND
REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE,
ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT.
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 sustained or caused by Company in connection with or incidental to performance
under this Agreement.
e. This section shall survive the expiration or termination of this Agreement.
24. AUDIT.
Company agrees that City and its internal auditor will have the right to audit, 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 Company that relate to this Agreement, 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 1000 Throckmorton 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.
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
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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.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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City of Fort Worth and Appaloosa Horse Club Page 8 of 10
EXECUTED to be EFFECTIVE as of the date set forth Section 2 of this Agreement:
CITY OF FORT WORTH:
By:
Susai'Alanis
Assistant City Manager
APPROVAL RECOMMENDED:
By:
44C,
Kirk Slaughter
Director of Public Events
APPALOOSA HORSE CLUB:
APPROVED AS TO FORM AND LEGALITY:
Tyler .Wallach
Assistant City Attorney
ATTEST:
Mary J. er
City S e`cretary
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EXHIBIT "A"
EVENT PLAN
This Event Plan is intended to provide the basis for reimbursement, to the fullest extent provided
by law or regulation, of costs relating to the preparations necessary or desirable for the conduct
of the Event and the payment of costs of conducting the Event, including improvements or
renovations to existing facilities or other facilities and costs of acquisition or construction of new
facilities or other facilities.
Specifically the City and Company agree that the following costs and expenses, which will be
incurred and related to the Event, are appropriate for reimbursement under the Act as Permissible
Uses to be reimbursed by the Fund:
City of Fort Worth Expenses
• Improvements or renovations to existing City facilities
•
•
Maintenance to hold the Event
City of Fort Worth Public Events Department services, including, but not limited to any
and all personnel and administrative costs
Appaloosa Horse Club Expenses
• Purse Payouts
• Advertising and Promotion
• Awards
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