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HomeMy WebLinkAboutContract 45830 (2)CITY SECRETARY CONTRACT N00 t, SETTLEMENT AGREEMENT AND RELEASE 1 T is Settlement Agreement and Release ("Agreement") is made and entered into this 4 day of / ' ,,O, 2014, ("Effective Date") by and between the City of Fort Worth, a home -rule municipality 's rganized under the laws of the State of Texas, acting by and through its duly authorized Assistant City Manager, Equine Marketing Group, Inc., an Iowa corporation, acting by and through Terry Schroeder, its duly authorized Executive Director, and Reichert Celebration, Inc., an Iowa corporation, acting by and through Terry Schroeder, its duly authorized President. A. Definitions In addition to the terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: "City" means the City of Fort Worth, Texas, and its officers, representatives, agents, servants, and employees. "EMG" means Equine Marketing Group, Inc., an Iowa corporation, and/or its partners, representatives, members, managing members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary organizations, parent organizations, successor entities, assigns, predecessors, stockholders, administrators, contractors, and related companies. "ETF Contract" means Fort Worth City Secretary Contract ("CSC") Number 44559, a Trust Fund Event Support Contract between the City of Fort Worth and EMG. "License Agreement" means collectively Fort Worth City Secretary Contract Number 41468, as amended by Fort Worth City Secretary Contract Number 41468-A 1, a License Agreement between the City of Fort Worth and EMG for use of the Will Rogers Memorial Center. "License Agreement Fees" means the amount of money set forth in the License Agreement that EMG agreed to pay to the City for permission to use the Will Rogers Memorial Center to host its Reichert Celebration Event, which includes, without limitation, all fees for facility rentals, shavings, commercial exhibitor and vendor space, arena preparation and clean-up, sound system, and trailer and R.V. parking. "Parties" means the City, EMG, and Reichert Celebration. "Reichert Celebration" means Reichert Celebration, Inc., an Iowa corporation, and/or its partners, representatives, members, managing members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary organizations, parent organizations, successor entities, assigns, predecessors, stockholders, administrators, contractors, and related companies. B. Recitals WHEREAS, the City and EMG entered into Fort Worth City Secretary Contract ("CSC") Number 41468 on or about February 10, 2011, for the purpose of allowing EMG to host its Reichert Celebration Event ("Event") at the Will Rogers Memorial Center ("WRMC") from 2011 through 2015 pursuant to an agreed upon payment and rate structure; OFFICIAL RECO ©9 Y SECRETARY Settlement Agreement and Release — City, Equine Marketing Group, Inc. and Reichert Celebrati m, Ir`U Mg lof7 WHEREAS, on June 18, 2012 the City and EMG entered into CSC Number 41468-Al to add the new Equestrian Multi -Purpose Building as an additional facility authorized for use for the Event along with the corresponding rental rate schedule for years 2012 and 2015 WHEREAS, pursuant to the License Agreement, EMG agreed to pay the City a $25,000.00 facility rental fee prior to the start of the 2013 Event ($5,000.00 on or before February 1, 2013 and $20 000.00 on or before August 1, 2013); WHEREAS, EMG also agreed to pay, in full, any additional remaining balance owed within thirty (30) days after receipt of a final invoice from the City, which included without limitation, charges for additional facility rentals, shavings, commercial exhibitor and vendor space arena preparation and clean-up, sound system, and trailer and R.V. parking; WHEREAS, in return for EMG hosting its 2013 Event at the WRMC, the City agreed to apply to the Texas Comptroller of Public Accounts ("Comptroller") for the creation of an events trust fund for EMG's 2013 Event under the provision of Texas Revised Civil Statutes, Article 5190.14 § 5C ("Act"), for the purpose of seeking reimbursement of costs related to preparing for and conducting EMG's 2013 Event; WHEREAS, on or about June 20, 2013, the City and EMG entered into the ETF Contract setting forth the obligations of the City and EMG; WHEREAS, the Comptroller established an events trust fund for the 2013 Event in the amount of $547,960.00 ($472,379.00 in state funds plus a $75,581.00 match by the City), WHEREAS, pursuant to the ETF Contract, the City is obligated to reimburse EMG for certain actual expenses related to the 2013 Event up to the amount eventually distributed by the Comptroller; WHEREAS, pursuant to the License Agreement, EMG paid its facility rental payment of $25,000.00 in a timely manner; WHEREAS, EMG held their 2013 Event at the WRMC from August 26, 2013 through September 9, 2013, which includes move in and move out dates; WHEREAS, on December 4, 2013, the City sent a final invoice to EMG detailing all remaining amounts owed pursuant to the terms of the License Agreement, said amount totaling $191,444.78; WHEREAS, EMG issued partial payment of $52,714.03 to the City on March 20, 2014, leaving a balance of $138,730.75 owed to the City* WHEREAS, EMG is currently in breach of the License Agreement and the City and EMG have agreed on contractual damages to the City equal to the amount owed by EMG under the License Agreement for its 2013 Event, to wit, $138,730.75; WHEREAS, to cure EMG's breach of the License Agreement and to settle any claim for damages that the City may have thereunder up to the Effective Date of this Agreement for unpaid License Agreement Fees for the 2013 Event, EMG has agreed to assign to the City a portion of the funds owed or to be owed to it under the ETF Contract equal to the outstanding contractual damages owed to the City in the amount of $138 730.75; Settlement Agreement and Release — City, Equine Marketing Group, Inc. and Reichert Celebration, Inc. 2 of 7 WHEREAS, in the event that EMG cannot meet its obligations under this Agreement, Reichert Celebration has agreed to guarantee any and all outstanding payments to the City that would otherwise be payable by EMG; and WHEREAS, except as may be set forth below in the terms of the Agreement, the Parties hereby agree that the following terms and conditions shall constitute full and final settlement pertaining to the payment of the License Agreement Fees for the 2013 Event. C. Agreement. Release. & Covenants NOW, THEREFORE the Parties hereto, in consideration of the mutual covenants set forth herein and intending to be legally bound hereby, stipulate and agree as follows: 1. The recitals set forth above are true and correct and form the basis upon which the Parties have entered into this Agreement and are incorporated herein by reference. 2. EMG does hereby GRANT, BARGAIN, SELL, CONVEY, TRANSFER, and ASSIGN unto the City all right, title, and interest in and to certain funds owed or to be owed to EMG pursuant to the ETF Contract in the amount of ONE HUNDRED THIRTY-EIGHT THOUSAND SEVEN HUNDRED NINETY DOLLARS AND SEVENTY-FIVE CENTS ($138,790.75), which represents the contractual damages for the 2013 Event that EMG currently owes to the City pursuant to the License Agreement. (2) 3. In the event the City receives less than $138,790.75 in distributions from the Comptroller under the ETF Contract, as referenced above in Section of this Agreement EMG shall be liable for paying any remaining balance within thirty (30) days after receiving written notification by the City. By way of example only if the City receives a total distribution of $100,000.00 from the Comptroller under the ETF Conti act, then the City would be permitted to retain the full $100,000.00 and EMG would be liable to the City for the remaining $38,790.75 ($138,790.75 - $100,000.00). 4. Upon full receipt of all amounts due to the City pursuant to terms of this settlement, the City and EMG hereby COMPROMISE, SETTLE, RELINQUISH, RELEASE, ACQUIT, and FOREVER DISCHARGE each other from and against any and all claims, demands, debts, liens, costs, expenses, actions, and causes of action of whatsoever nature, description of character, whether in tort or in contract, or by virtue of the common law, statute, or regulation, known or unknown, heretofore existing between the City and EMG, whether known or unknown, which may have accrued or may accrue, on account of, arising from, or in any manner growing out of, relating to, resulting from, or in any way connected to that portion of the License Agreement pertaining to the payment of the License Agreement Fees for the 2013 Event. 5. Guaranty. a. Reichert Celebration hereby irrevocably and unconditionally guarantees the due and punctual payment in full of all obligations of EMG that are due to the City under this Agreement when the same shall become due ( `Guaranteed Obligation"). Settlement Agreement and Release — City, Equine Marketing Group, Inc. and Reichert Celebration, Inc. 3 of 7 b. Reichert Celebration agrees that, upon the failure of EMG to pay any amount of the Guaranteed Obligation when and as the same shall become due, Reichert Celebration shall upon written demand from the City pay, or cause to be paid, in cash, to the City, an amount equal to the sum of the unpaid amount of the Guaranteed Obligation. c. Reichert Celebration agrees that its obligations hereunder are irrevocable, absolute, independent, and unconditional. Reichert Celebration agrees that this guaranty is a guaranty of payment when due and not of collectability and that this guaranty is a primary obligation and not merely a contract of surety. d. Reichert Celebration hereby waives, for the benefit of the City: i. any right to require the City, as a condition of payment or performance by such Reichert Celebration to: 1. sue or exhaust remedies against EMG or any other person or guarantor, 2. enforce right against or exhaust any security held from EMG, any such other guarantor, or any other person, or 3. sue or exhaust any other remedy in the power of the City whatsoever ii. any defense arising by reason of the incapacity, lack of authority or any disability or other defense of EMG including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligation or any agreement or instrument relating thereto or by reason of the cessation of the liability of EMG from any cause other than payment in full of the Guaranteed Obligation; iii. (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms heieof and any legal or equitable discharge of such Reichert Celebration's obligations hereunder, (ii) the benefit of any statute of limitations affecting such Reichert Celebration's liability hereunder or the enforcement hereof, (iii) any rights to set -offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that the City protect, secure, perfect or insure any security interest or lien or any property subject thereto• iv. any and all rights pursuant to Rule 31 of the Texas Rules of Civil Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code, and Chapter 34 of the Texas Business and Commerce Code, and any and all amendments, recodifications or supplements to any such laws; v. notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder, or any agreement or instrument related thereto notices of any renewal, extension or modification of the Guaranteed Obligation or any agreement related thereto; and vi. any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof. Settlement Agreement and Release — City, Equine Marketing Group, Inc. and Reichert Celebration, Inc. 4 of 7 e. This guaranty shall continue in effect until all of the Guaranteed Obligation is fully and finally paid, satisfied, and discharged. 6. The Parties warrant that no promise or inducement has been offered except as set forth herein; that this Agreement is executed without reliance upon any statement or representation of any person or Party's release, or its representatives, concerning the nature and extent of the losses, injuries, damages, and/or legal liability therefore; and that the acceptance of the consideration set forth herein is in full accord and satisfaction of all claims set forth herein. 7. It is understood that this is a compromise of a claim. The City and EMG desire to compromise and settle all matters and things to avoid the hazard, inconvenience, uncertainty, and expense of litigation. 8. The City and EMG represent and warrant that they are the sole owners of the claims, causes of actions, and lights -in -action being released herein, and they have not transferred, assigned, or otherwise encumbered said claims or any part thereto. 9. The Parties hereto shall not assign or transfer their interests and obligations set forth in this Agreement without the prior written consent of the other parties, and any attempted assignment or transfer of all or any part hereof without such prior written consent shall be void. Any future assignment of the License Agreement from EMG to Reichert Celebration shall have no effect on the validity and enforceability of the terms of this Agreement, and this Agreement shall remain in full force and effect and shall survive any such assignment. 10. This instrument contains the entire agreement between the Parties as to the matters contained herein and the terms of this instrument are contractual and not merely recitals. There are no other agreements, either written or oral, and this Agreement supersedes all earlier representations negotiations, or agreements about this matter. The Parties acknowledge that the covenants, promises, and representations made herein are binding on, and mure to, the benefit of each of the Parties. 11. The Parties represent that they have consulted, or had the opportunity to consult an attorney to seek legal counsel regarding the contents and effects of this Agreement. The Parties further represent that they have been informed of the content and effect of this instrument and that the instrument is executed as their act and deed and of their own free will. 12. In the event that any provision of this Agreement is held void, voidable, or unenforceable, the remaining portions shall remain in full force and effect. 13. 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 he 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, including all exhibits, shall be construed in accordance with the laws of the State of Texas. Settlement Agreement and Release — City, Equine Marketing Group, Inc. and Reichert Celebration, Inc. 5 of 7 14. The Parties represent and warrant that they are over the age of eighteen (18) years, competent to execute this Agreement, have carefully read the foregoing Agreement, and know the contents thereof and have signed the same of their own free will and with the advice of counsel, if applicable. 15. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 16. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective on the Effective Date. CITY OF FORT WORTH by: cu2, usan Alanis Assistant City Manager Date: 2Jt / o'er i'r' APPROVED AS TO FORM AND LEGALITY: Tyler F. Walla Assistant City Attorney ATTESTE i aKay City Sect'- ary No M&C required 0 0 0 .c i 41$o0 00 woo 00-00000 !-Ct: EQUINE MARKETING GROUP, IN / c Strin'uet%r ecutive Director Date: REICHERT CELEBRATION, INC. Te Schroeder P sident Settlement Agreement and Release — City, Equine Marketing Group, Inc. and Reichert Celebration, Inc. FF1o9ia RECORD CITY SECRETARY tiMRTG�, FAQ __ o STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Susan Alanis, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the City of Fort Worth for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this G41 day of (*L& .l k , 2019. �l‘t. `► ice 'ie i: r .* is . :u'.#44.00: • LINDA M. HIRRLINGER MY COMMISSION EXPIRES February 2, 2018 g. STATE OF lo C )0 § COUNTY OF rt +o_, § SLL mYUuLu , Notary Public in and for The State of Texas BEFORE ME, the undersigned authority, a Notary Public in and for the State of IfOu, , on this day personally appeared Terry Schroeder, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of Equine Marketing Group, Inc., for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this (5+ day of • TERESA J HUEDEPOH L 1lotariai Seal - lowa Commission # 153511 ?„.--.. ,--. .-•%.. . 3i Commission a ires STATE OF 2iCV4 COUNTY OF :Co Da § Hillebt Notary Pu c in and fo The State of To te�. BEFORE ME, the undersigned authority, a Notary Public in and for the State of /OWCe.. , on this day personally appeared Terry Schroeder known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of Reichert Celebration, Inc., for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this i1/44 day ofda(/(,�.({��//�S f V wit r ) TERESA J H LIEDEpOHIL. ritiotariml Sear:- Iowa i;ommizfliots 015311 Notary Puc in and fo The State of 0 /pa, Settlement Agreement and Release — City, Equine Marketing Group, Inc. and Reichert Celebration, Inc. o/i 7 of 7