HomeMy WebLinkAboutContract 54523 CITY S1 RETARY
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g�( TRUST FUND EVENT SUPPORT CONTRACT
This TRUST FUND EVENT SUPPORT CONTRACT (G°Agreement") is made and
entered into by and between the CITY OF FORT WORTH ("City"), a home-rule municipality
organized under the laws of the State of Texas and the NATIONAL CUTTING HORSE
ASSOCIATION("Company"), a Texas nonprofit corporation.
RECITALS
The City and Company hereby agree that the following statements are hue and correct
and constitute the basis upon which the City and Company have entered into this Agreement:
A. Company operates the Triple Crown of Cutting, which is comprised of three (3)
events: 2020 World Championship Futurity, 2021 Super Stakes & Super Stakes Classic, and
2021 Summer Cutting Spectacular and Derby (collectively, referred to as `Events" and,
singularly, as"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 Events and has
chosen the Will Rogers Memorial Center to serve as the sole venue for the Events or the sole
venue for the Events in a region composed of Texas and one or more adjoining states, the terms
of which are governed by a multi-year agreement between the parties.
C. The Event is held not more than one time in any year.
D. Company engaged Angie Highland, of Highland Market Research ("Highland")
to prepare an Analysis of the Economic Impact of the Event for purposes of submitting to the
Office of the Governor Economic Development and Tourism ("EDT") to determine eligible
Texas state tax revenues generated by the Event.
E. Chapter 478 of the Texas Government Code, as amended (as it may be amended
from time to time) ("Act") authorizes the EDT to establish the Major Event Trust Fund (the
"Fund"). Funds deposited into the Fund may be used by the City to fulfill its obligations under
an event support contract, as defined in the Act, governing the Event. This Agreement is
intended to serve as such event support contract.
F. The EDT has analyzed the incremental increase in certain sales and use, hotel
occupancy and mixed beverage tax receipts to be collected by or on behalf of the City and the
State of Texas directly attributable to the preparation for and presentation of the Event and
related activities.
G. Based on its analysis, the EDT, by letter to the City dated September 9, 2020, has
determined that the State will deposit an estimated amount of$939,287.00 of its funds for the
2020 World Championship Futurity if matched by$150,287.00 in remittances by or on behalf of
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City of Fort Worth and National Cutting Horse Association i Page 1,of 11
the City, for a total estimated Fund amount of $1,089,574.00. The State will deposit an
estimated amount of $461,595.00 of State funds for the 2021 Super Stakes & Super Stakes
Classic if matched by$73,856.00 in remittances by or on behalf of the City, for a total estimated
amount of $535,451.00. The State will deposit an estimated amount of$612,395.00 of State
funds for the 2021 Sumtner Cutting Spectacular & Derby if matched by $97,984.00 in
remittances by or on behalf of the City, for a total estimated amount of$710,379.00.
H. The Act provides that the money in the Fund may be used for the payment of
costs relating to the preparations necessary for conducting the event and costs of conducting the
event ("Permissible Uses").
I. The obligations of the Parties under the Agreement are set forth in Section 5,
which the Parties agree are, without limitation, necessary for the City to provide incremental
services necessary for the Event as well as other costs necessary for City to host the Event and
for Company to conduct the Event.
J. Pursuant to Resolution No. 3513-08-2007 adopted on August 14, 2007, the City
Council of the City has authorized the City Manager to negotiate agreements that promote major
events benefitting the City and secured, in part, on account of the Fund and the provisions of the
Act.
NOW, THEREFORE, for and in consideration of the premises, undertakings, and
mutual covenants of the parties set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. RECITALS.
The parties agree that the recitals set forth above in this Agreement are true and correct,
and the representations, covenants, and recitations set forth therein are made a part hereof for all
purposes.
2. TERM.
This Agreement is effective as of September 9, 2020 and shall remain in full force and
effect until the later of.(i) December 31, 2022 or (ii) the date as of which all funds have been
disbursed in accordance with the Act and with this Agreement, unless terminated earlier pursuant
to the terms of this Agreement.
3. APPLICATION FOR EVENT TRUST FUND DISBURSEMENT.
The City has previously applied to the EDT for the creation of a Fund for the Event under
the provisions of Act.
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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$322 127.00 for the three Events that comprise the
Triple Crown of Cutting to the EDT, as set forth in the September 9, 2020, letter that was issued
by the EDT estimating the incremental increase in tax revenue under the Act as a result of the
Event and setting forth the contribution to the Fund by the City(the "City Remittance"). The
City Remittance is intended to trigger the State of Texas contribution to the Fund under the terms
of the Act. The City Remittance plus the contributions by the State of Texas to the Fund in
accordance with the Act shall be referred to herein as the"Total Fund Amount."
5. GENERAL OBLIGATIONS OF THE PARTIES.
a. Company.
(i) Company is obligated to hold and conduct the Events at Will Rogers
Memorial Center on the following dates:
(A) 2020 World Championship Futurity—
November 19-December 13, 2020
(B) 2021 Super Stakes&Super Stakes Classic—
March 23-April 17, 2021, and
(C) 2021 Summer Cutting Spectacular&Derby—
July 13-August 7,2021.
(ii) Company also agrees that the covenants and promises made in this
Agreement, including,but not limited to,the Company's expenses set forth in this
section are necessary to prepare for and conduct the Event.
b. City.
(i) The City is obligated to host the Event.
(ii) The parties recognize that the Company is the Event expert and has the
structure and mechanisms in place to properly and adequately perform the
functions necessary to prepare for and conduct its Event. In addition to
hosting the Event, the City's obligation under this Agreement shall be to
pay the Company for the necessary, reasonable, and actual expenses
required to prepare for and conduct the Event as a means to reimburse the
Company to help cover the costs of the Event in areas of which the City
lacks expertise. These expenses may include, but are not limited to, the
following:
(A) Advertising and marketing promotions of the Events, including but
not limited to, television and radio broadcast, published media,
website, social media,printing and production costs;
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(B) Awards distributed at the Event including trophies, ribbons,
medallions, medals, sashes, plaques, saddles, jackets, boots, pins,
sculptures, tack, hats, horse apparel, grooming products,
therapeutic horse products, personal apparel storage, shaving
supply kits,knives and belt buckles;
(C) Cost of specialized arena footing to be used during the event,
including the delivery and removal prior to and following the
event;
(D) Leasing, transportation, and feed expenses for cattle to be used in
the Events;
(E) Rental cost of facilities for the Events;
(F) Rental cost of equipment for the Events;
(G) Event insurance;
(H) Event decorator;
(I) Officials, judges and staff, hired for the event, and their related
expenses;
(J) Security and paramedics;
(K) On-site veterinarian;
(L) Equine drug testing fees;
(M) Food provided on-site to event participants or other personnel
necessary to conduct the event;
(N) Travel expenses including lodging, automobile mileage, rental car
and commercial airfare for event participants or other similar
persons directly related to the conduct of the event, provided that
said individual does not reside in the events market area;
(0) Security personnel for planning and operating a human trafficking
prevention plan in relation to the event(s);
(P) Health inspection station;
(Q) Parking fees on facility grounds;
(R) Photographer,videographer and/or webcaster; and
(S) Printing and production expenses for event programs and/or
schedules.
(iii) The Company shall provide invoices to the City for expenses incurred for
the Event. The Company shall provide any supporting expense documentation as
required by the City or as requested by the EDT to the full satisfaction of both the
City and the EDT. The City will make payment(s) to Company within thirty (30)
calendar days after receipt of such payment from the EDT in accordance with the
terms of this Agreement. The City will be responsible for dealing with the EDT
with respect to disbursements from the Fund and distributing the Total Fund
Amount in accordance with the terms of this Agreement.
(iv) Any payments to the Company as set forth in this Agreement are limited
to the maximum amount available from and approved for eventual distribution
from the Fund established for this Event and must be eligible for payment by the
Major Events Reimbursement Program. Under no circumstances shall the City be
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City of Fort Worth and National Culling horse Association Pago 4 of 11
obligated to Company for more than that maximum sum when, and if, received
from the Fund for the Event. The Company shall not seek, and will not be
entitled to, payment from the City for any costs not distributed by the EDT from
the Fund(s) established for the Event(s).
(v) Notwithstanding anything to the contrary, City may withhold all
distribution of payments to Company under this section if Company has any
outstanding obligations owed to the City pursuant to any contract with the City.
If the City withholds any funds for this reason, then the City shall provide a
written statement to Company, detailing the outstanding obligations. Company
shall have thirty (30) calendar days from the date it receives City's written
statement to cure any such outstanding obligations ("Cure Period"). The Cure
Period can be extended by written agreement of the City and Company. Notice
shall be as prescribed in Section 12. If Company cures its outstanding obligations
within the Cure Period, then the City will make distributions from the Total Fund
Amount in accordance with the procedures set forth in in this Section, which
procedures will begin anew on the date Company cures its outstanding obligations
to the City. If Company fails to cure its obligations within the Cure Period, then
the City has the absolute right to offset any amount owed to the City by Company
against the Total Fund Amount and flake immediate possession of such funds to
satisfy all outstanding obligations. The City and Company acknowledge that any
such offset shall not be construed as a distribution of Funds under this Agreement,
but as payment by Company of funds owed to the City for application toward any
outstanding obligations owed to the City. If the City exercises its right of offset,
then Company hereby waives it right to receive any reimbursement or distribution
from the Total Fund Amount under this Agreement that is subject to the offset
amount. To the extent that any funds remain from the Total Fund Amount after
the City applies the above-stated offset, then the City will distribute such funds in
accordance with the terms of this Agreement. If the offset is not sufficient to
discharge all of Company's outstanding obligations to the City, Company will
continue to be obligated to pay the City all amounts remaining after application of
the offset, and the City will retain all legal rights and remedies available to it to
collect such amounts.
6. COMMITMENT OF COMPANY.
In consideration of the benefits set forth herein, Company will use commercially
reasonable efforts to conduct the Event during the Terre 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.
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Company hereby certifies and wax-rants that all documentation submitted to the City fully
and accurately represents the actual costs incurred by Company in hosting the Event and is
consistent with the Permissible Uses under the Act. Company shall be liable to the City for any
damages resulting from a breach of this section. This section shall survive the expiration or
termination of this Agreement.
8. NON-EXCLUSIVE REMEDIES.
No remedy herein conferred or reserved is intended to be exclusive of any other available
remedy or remedies, and each and every such remedy shall be cumulative and shall be in
addition to every such remedy given under this Agreement or now or hereafter existing at law or
in equity or by statute. It is expressly agreed that the remedy at law for breach by a party of its
obligations hereunder may be inadequate in view of the complexities and uncertainties in
measuring the actual damages that would be sustained by reason of either party's failure to
comply fully with each of such obligations. Accordingly, the obligations of each party hereunder
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.
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 writing by the parties. I£the Event is cancelled for any reason,
then this Agreement will terminate immediately and the City shall not be held responsible or
liable for its obligations hereunder.
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
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City of Tort Wordi and National Cutting Horse Association Page 6 of r 1
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: NATIONAL CUTTING HORSE
ASSOCIATION
City of Fort Worth National Cutting Horse Association
Attn: Director,Public Events Dept. Attn: Jay Winborn
200 Texas Street 260 Bailey Avenue
Foil Worth, TX 76102 Fort Woi* TX 76107
with copies to:
the City Manager and
the City Attorney
at the same address
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.
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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.
In the event of any dispute over the meaning or application of any provision of this
Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly
for or against any party,regardless of the actual drafter of this Agreement.
19. CAPTIONS.
Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
20. ENTIRETY OF AGREEMENT.
This Agreement, including any exhibits attached hereto and any documents incorporated
herein by reference, contains the entire understanding and agreement between the City and
Company, and any lawful assign and successor of Company, as to the matters contained herein.
Any prior or contemporaneous oral or written agreement is hereby declared null and void to the
extent in conflict with any provision of this Agreement. This Agreement shall not be amended
unless executed in writing by all parties.
21. COUNTERPARTS.
This Agreement may be executed in any number of counterparts with the same effect as
if all of the parties had signed the same document. Such executions may be transmitted to the
other party by digital scan or facsimile and such scanned or facsimile execution shall have the
full force and effect of an original signature. All fully executed counterparts, whether original
executions or scanned or facsimile executions or a combination, shall be construed together and
shall constitute one and the same agreement.
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City ofPort Worth and National Cutting Horse Association Page 8 of 11
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 HIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR
PROPERTY OR MONETARY LOSS, OR OTHER HARM FOR WHICH RECOVERY OF
DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER
REAL OR ASSERTED, ARISING OUT OF, IN CONNECTION WITH, OR RESULTING
FROM ANY ACT, ERROR, OR OMISSION OF COMPANY AND ITS RESPECTIVE
OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND
REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE,
ATTEMPTED PERFORMANCE,OR NONPERFORMANCE OF THIS AGREEMENT.
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.
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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 wit-itten
consent of the other party, and any attempted assignment or transfer of all or any part hereof
without such prior written consent shall be void. This Agreement shall be binding upon and
shall inure to the benefit of City and Company and its respective successors and permitted
assigns.
26. AUTHORIZATION.
By executing this Agreement, Company's agent affirms that he or she is authorized by
the Company to execute this Agreement and that all representations made herein with regard to
Company's identity, address, and legal status (corporation, partnership, individual, dba, etc.) are
true and correct.
27. REVIEW OF COUNSEL.
The parties acknowledge that each party and its counsel have reviewed and revised this
Agreement and that the normal rules of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation of this Agreement
or exhibits hereto.
EXECUTED to be EFFECTIVE as of the date set forth Section 2 of this Agreement:
CITY OF FORT WORTH: NATIONAL CUTTING HORSE
ASSOCIATION:
B _/ B
Y• Y•
Jesus Chapa Ja Winborn
Deputy City Manager Exedative Director
i
Trust Fund Event Support Contract
City o£rort Worth and National Cutting Horse Association I Page!0 0£11
I
i— ---
APPROVED AS TO FORM AND LEGALITY:
yler F. Wallach
Assistant City Attorney
A T%/ y.,,
Mary J.Kayser � ..
City Secretary
................................................................-------...----------•--.,..--------------....------.......------.._...........-------------
CITY OF FORT WORTH USE ONLY
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
BrandV- 0ordinator
ner
Progra
Contract Authorization:
City Council Resolution Number 3513-08-2007
r�rA '
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