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HomeMy WebLinkAboutContract 45266 (2)(ally mcklkithtt con-mcie mac 5 izteu MUTUAL SETTLEMENT AGREEMENT AND RELEASE This Mutual Settlement Agreement and Release (the "Agreement") is made and entered into this zsta day of Oecembey , 2013, (the "Effective Date") by and between the City of Fort Worth, a home -rule municipality organized under the laws of the State of Texas, acting by and through its duly authorized Assistant City Manager, and the National Reining Horse Association, an Oklahoma non-profit corporation, acting by and through Beth Himes, its 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. "ETF Contract" means Fort Worth City Secretary Contract ("CSC") Number 44473, a Trust Fund Event Support Contract between the City of Fort Worth and National Reining Horse Association. "ETF Term Sheet" means and includes Fort Worth CSC Number 45129, a Term Sheet Regarding the Use of Events Funds from the State of Texas between the City of Fort Worth and National Reining Horse Association. "License Agreement" means collectively Fort Worth CSC Number 41737, as amended by CSC 41737-Al, a License Agreement between the City of Fort Worth and NRHA for use of the Will Rogers Memorial Center. "NRHA" means and includes the National Reining Horse Association, an Oklahoma non-profit 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. "Parties" means both the City and NRHA. B. Recitals WHEREAS, the Parties entered into the CSC Number 41737 on May 2, 2011, for the purpose of allowing the NRHA to host its Cowtown Classic Event ("Event") at the Will Rogers Memorial Center ("WRMC") from 2011 through 2013, with optional extensions for two additional years, pursuant to an agreed upon rate structure; WHEREAS, on February 2, 2012, the Parties entered into CSC Number 41737-Al to modify the NRHA's Event dates for years 2012 and 2013, with the 2013 Event to occur from August 10, 2013 through August 18, 2013; WHEREAS, in return for NRHA hosting its 2012 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 NRHA's 2012 Event under the provision of Texas Revised Civil Statutes, Article 5190.14 § 5C ("Act"), Mutual Settlement Agreement and Release 1 of 10 OFFICIAI. RECORD RECEIVED JANO3 2014 CITY SECRETARY', tWflRTh,TX for the purpose of seeking reimbursement of costs related to preparing for and conducting NRHA's 2012 Event; WHEREAS, on or about February 26, 2012, the Parties executed the ETF Term Sheet to serve as the basis for the development of the ETF Contract and, subsequently, entered into the ETF Contract setting forth the obligations of the Parties* WHEREAS, the Comptroller established an events trust fund for the 2012 Event in the amount of $267,038.00 ($230,205.00 in state funds plus a $36,833.00 match by the City); WHEREAS, pursuant to the ETF Contract the City was obligated to reimburse the City and Company foi certain actual expense related to the 2012 Event, with NRHA to receive reimbursement after the City had been paid for its expenses; WHEREAS, Section 6 of the ETF Contract also required NRHA separately to pay the City an amount equal to the City's match of $36,833.00; WHEREAS, after the conclusion of the 2012 Event, NRHA submitted invoices to the City seeking reimbursement for the full $267,038.00 based on actual expenses that it had incurred for the 2012 Event; WHEREAS, the City did not have expenses foi which it sought reimbursement and, thus, forwarded the full amount of NRHA's invoices to the Comptroller for payment; WHEREAS, on or about February 27, 2013, NRHA informed the City that it would not be exercising its renewal options under the License Agreement, but reiterated its commitment to proceed with the 2013 Event; WHEREAS, on or about May 10, 2013, NRHA informed the City, in writing, that it had decided to cancel its August 2013 Event, resulting in a default under the License Agreement; WHEREAS, the Parties agreed on contractual damages to the City in the amount of $110,500.00; WHEREAS, the Parties have agreed to reduce the damages owed to the City by $6,500.00, which reflects the amount of revenue the City was able to generate by rebooking a portion of the premises for iginally licensed by NRHA; WHEREAS, to partially compensate the City for the remaining $104,000.00 in damages, NRHA has offered the City certain advertising and sponsorship benefits for a term of two years at a value of $35,100.00; WHEREAS, on or about August 8, 2013, the City received funds associated with the ETF Contract totaling $267,038.00; WHEREAS, pursuant to Section 5 of the ETF Contract, the City withheld all event trust fund payments to NRHA due to the contractual damages owed to the City as a result of NRHA's default under the License Agreement; WHEREAS, to satisfy its obligation under the License Agreement, NRHA has agreed to assign to the City a portion of the funds owed to it under the ETF Contract equal to the remaining contractual damages owed to the City in the amount of $68,900.00 ($110,500.00 - $6 500 00 - $35,100.00); Mutual Settlement Agreement and Release 2 of 10 WHEREAS, NRHA has also agreed to assign to the City $36,833.00 of the remaining $198,138 00 ($267,038.00 - $68,900.00) due to the NRHA in satisfaction of its obligation under Section 6 of the ETF Contract as set forth above; WHEREAS, the Parties have agreed to resolve all remaining obligations under the ETF Contract in accordance with the terms stated herein; WHEREAS, the Parties hereby agree that the following terms and conditions shall constitute full and final settlement of any and all issues associated with the ETF Term Sheet and Contract and the License Agreement. C. Agreement, Release, & Covenants NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants set forth herein and mtending to be legally bound hereby, stipulate and agree as follows: 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. NRHA does hereby agree to provide the City with $35,100.00 in advertising and sponsorship benefits in accordance with the terms and conditions set forth in Exhibit 1, which is attached hereto and incorporated herein foi all purposes ("Advertising Agieement' ). Any termination of the Advertising Agreement by the City pursuant to and in accordance with the Advertising Agi eement shall be deemed an automatic breach of this Agreement by NRHA, in which case the City immediately shall have the right to collect upon NRHA for any damages suffered as a result thereof. 3. NRHA does hereby GRANT, BARGAIN, SELL, CONVEY, TRANSFER, and ASSIGN unto the City all right, title, and interest in and to certain funds owed to the NRHA pursuant to the ETF Contract in the amount of ONE HUNDRED FIVE THOUSAND SEVEN HUNDRED THIRTY-THREE DOLLARS AND NO CENTS ($105,733.00). This sum represents the $68,900.00 in contractual damages owed to the City pursuant to the License Agreement and the $36,833.00 payment owed to the City in satisfaction of NRHA's obligation under Section 6 of the ETF Contract. 4. The City does hereby agree to pay to NRHA the sum of ONE HUNDRED SIXTY-ONE THOUSAND THREE HUNDRED FIVE DOLLARS AND NO CENTS ($161,305.00) which represents full and final payment for all remaining amounts owed to NRHA pursuant to the ETF Contract. The City shall pay this sum solely from funds received from the Comptroller pursuant to the Act on account of NRHA's 2012 Event within thirty (30) days after the Effective Date of this Agreement. 5. Except as set forth in Section 6 of this Agreement, the City and NRHA hereby COMPROMISE, SETTLE, RELINQUISH, RELEASE, ACQUIT, and FOREVER Mutual Settlement Agreement and Release 3 of 10 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, of regulation, known or unknown, heretofore existing between the Parties, whether known or unknown, which may have accrued or may accrue, on account of, arising from, or in any manner gi owing out of, relating to, resulting from, or in any way connected to the ETF Term Sheet, ETF Contract, the License Agreement, and any related transactions and occurrences including, but not limited to, any and all claims for exemplary damages consequential damages, contractual damages, economic loss, attorney's fees, and any and all damages recoverable under the laws of the State of Texas and any and all other statutory or common law legal damages, known or unknown. 6. Notwithstanding anything to the contrary herein, the ETF Contract, or the License Agreement, Sections 7 (Documentation), 23 (Indemnification and Release), and 24 (Audit) of the ETF Contract and Sections 20 (Indemnification) and 23 (Federal Copyright Act) of the License Agreement shall not be affected by this Agreement and shall remain in full force and effect in accordance with the terms of each respective agreement. 7. 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 inure to, the benefit of each of the Parties. 8. 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 of representation of any pet son 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. 9. It is understood that this Agreement is a compromise of a claim. The Parties desire to compromise and settle all matters and things to avoid the hazard, inconvenience, uncertainty, and expense of litigation. 10. 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. 11. The Parties represent and warrant that they are the sole owners of the claims, causes of actions, and rights -in -action being released herein, and they have not transferred, assigned, or otherwise encumbered said claims or any part thereto. Mutual Settlement Agreement and Release 4 of 10 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 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, including all exhibits, shall be construed in accordance with the laws of the State of Texas. 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. IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective on the Effective Date. CITY OF FORT WORTH by:, usan Alanis Assistant City Manager Date: I 2— I � � � I 3 APPROVED AS TO FORM AND LEGALITY: r av Tyle( allach Assistant City Attorney ATTESTE Mary Kayser City Secreta` No M&C required Mutual Settlement Agreement and Release NATIONAL REINING HORSE ASSOCIATION by: Beth Himes President Date: (7J23/7013 OFFICIAL RECORD Q\\'fl secagpor � � Rn WORTH, TX 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 3) day of 'at, , 20E) 1 •� 4 e!' 1,fir1#;!, 1• let 1 ,eat P • �fp i 3 S Sic 41- :iti•^:.j!•'';sra�1 l�i�ti�i3' i;1.�2.: -4ia.ty�itL%t3i` MY UNDA P,i . HIRRLLNGE R Cv1 1MISS1ON EXPIRES February 2.:. 014 9 STATE OF (e.jaArolat § COUNTY OF iallAa_ UttC1._ M UWIA-11 &otary Public in and for The State of Texas BEFORE ME, the undersigned authority, a Notary Public in and for the State of b) , on this day personally appeared Beth Himes, 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 National Reining Horse Association, an Oklahoma non-profit corporation, for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this rdda of : , 20 l . 2.3 y G�'r�n � 3 DEBORAH SHUPE Notary Public State of Oklahoma CoftinNssion 0 09005178 Co � E - tee Jun 22, R017 Mutual Settlement Agreement and Release No ary Public The State of nd for k(ahovno 6of10 EXHIBIT 1 ADVERTISING/SPONSORSHIP AGREEMENT 1. ADVERTISING/SPONSORSHIP CONSIDERATIONS As consideration for monies owed to the City pursuant to the License Agreement and set forth in the Settlement Agreement, NRHA agrees to provide the City with $35,100.00 in advertising and sponsorship benefits in accordance with the terms of this Advertising Agreement and as set forth in Exhibit ' 1-A," which is attached hereto and incorporated herein for all purposes. 2. TERM The term of this Advertising Agreement shall be for two years, beginning on the Effective Date and ending on the last day of the month following two years after the Effective Date. The parties agree and understand that any agreement to extend this Advertising Agreement beyond its original term must be reached at least one hundied eighty (180) days prior to expiration of the original term of this Advertising Agreement Nothing herein shall be construed as an agreement by either party to extend or negotiate to extend the original term of this Advertising Agreement. 3. INDEMNIFICATION NRHA HEREBY INDEMNIFIES AND AGREES TO DEFEND AND HOLD HARMLESS FOREVER CITY AND ITS OFFICERS, REPRESETNTATIVES, DIRECTORS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, JUDGMENTS, COSTS, AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES) OF ANY KIND ("LOSSES") ARISING DIRECTLY OR INDIRECTLY OUT OF (I) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF NRHA OR (II) THE BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT OF NRHA IN THIS ADVERTISING AGREEMENT. THE OBLIGATIONS TO INDEMNIFY CONTAINED HEREIN SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING THE TERMINATION OR CANCELLATION OF THIS ADVERTISING AGREEMENT WHETHER BY EXPIRATION OF TIME, BY OPERATION OF LAW, OR OTHERWISE. 4. TERMINATION FOR BREACH OR INSOLVENCY 4.1. Either party may terminate this Advertising Agreement, without liability to the other party, if the other party: (1) repudiates or materially breaches any of the terms of this Advertising Agieement; or (2) fails to make progress so as to endangei timely and proper completion of its obligations pursuant to this "Advertising Agreement and does not correct such breach or failure within thirty (30) days after receipt of written notice from the non -defaulting party specifying such breach or failure 4.2. Either party may terminate this Advertising Agreement, without liability to the other party, upon the happening of any of the following or any other comparable event (1) insolvency of the other party; (2) filing of any petition by or against the other party under any bankruptcy, reorganization or receivership law; (3) execution of an assignment for the benefit of the other party's creditors; or (4) appointment of any trustee or receiver of the other party s business or assets or any part thereof; unless such petition, assignment or appointment be withdrawn or nullified within fifteen (15) days of such event. Mutual Settlement Agreement and Release 7 of 10 4.3 In the event this Advertising Agreement is terminated, each party shall immediately take commercially reasonable steps to promptly cease using the other party's trademarks and other intellectual property. 5. FORCE MAJEURE Any delay or failure of either party to perform its obligations hereunder shall be excused to the extent that it is caused by an event or occurrence beyond its reasonable control such as, by way of example and not by way of limitation, acts of God, actions by governmental authority (whether valid or invalid), fires, floods, windstorms explosions, riots, natural disasters, wars, sabotage or labor problems; provided the party claiming force majeure promptly notifies the other party of the event of force majeure, the anticipated duration of the event of force majeure, and the steps being taken to remedy the failure Should the event of force majeure continue beyond thirty (30) days, or such shorter time period as may be reasonable under the circumstances, either party may terminate this Advertising Agreement. 6. COMPLIANCE WITH LAWS Each party shall perform its obligations under this Advertising Agreement in compliance with all applicable laws, orders or regulations of all appropriate jurisdictions. 7. NO IMPLIED WAIVERS Failure by either party at any time to require performance by the other party of any provision hereof shall in no way affect the r ight to require full performance any time then eafter, nor shall the waiver by either party of a breach of any provision of this Advertising Agreement constitute a waiver of any succeeding bleach of same or any other provision, nor constitute a waiver of the provision itself. 8. NO ASSIGNMENT Neither party shall transfer or assign its rights or delegate its obligations under this Advertising Agreement to a third party without the prior written approval of the other party. 9. RELATIONSHIP OF THE PARTIES NRHA and City are independent contracting parties, and nothing contained in this Advertising Agreement shall be deemed to create a partnership, joint venture or agency relationship between them, nor does it giant either party any authority to assume or create any obligation on behalf of or in the name of the other. 10. NOTICES Any notice required or permitted to be given by either party under or in connection with this Advertising Agreement shall be in writing and shall be deemed duly given when personally delivered or sent by registered or certified mail, return receipt requested postage prepaid, expedited courier service, e- mail, or by cable or facsimile, confirmed by letter, as aforesaid (a) if to City, at 3401 W Lancaster Ave., Fort Worth, TX 76107 and (b) if to NRHA, at 3000 NW 10`h' Street, Oklahoma City, OK 73107, unless otherwise agreed to by the pasties in writing. Mutual Settlement Agreement and Release 8 of 10 1 1. WAIVER OF IMMUNITY. If NRHA, as a charitable association, political subdivision, corporation, entity or individual enterprise, has or claims an immunity or exemption (statutory or otherwise) from and against liability for damage or injury to property or persons, NRHA, to the extent permitted by law, hereby expressly waives its rights to plead defensively such immunity, including governmental immunity, or exemption as against City arising under this Advertising Agreement. 12. SEVERABILITY. If any of the provisions contained in this Advertising Agreement shall be held, for any reason, to be invalid, illegal or unenforceable in any respect, such invalidity illegality, or unenforceability, shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 13. GOVERNMENTAL POWERS. It is understood that by execution of this Advertising Agreement, the City does not waive or surrender any of it governmental powers or immunities. 14. CAPTIONS. Captions and headings used in this Advertising Agreement are for reference purposes only and shall not be deemed a part of this Advertising Agreement. 15. AUDIT NRHA agrees that City and its internal auditor will have the right to audit, which shall include, but not be limited to, the light to complete access to and the right to examine, the financial and business records of NRHA that relate to this Advertising Agreement, including, but not limited to all necessary books, papers documents records, and personnel, (collectively "Records') in order to determine compliance with this Advertising Agreement. NRHA shall make all Records available to City at a location in Tarrant County acceptable to both parties within thirty (30) days after written 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 Advertising Agreement for a period of three (3) years. 16. ENTIRE AGREEMENT This Advertising Agreement constitutes the entire agreement between the parties relating to the subject matter covered herein and cancels and supersedes all previous agreements between the parties relating to the subject matter covered herein. Any modification to this Advertising Agreement must be in writing and signed by both parties. Mutual Settlement Agreement and Release 9 of 10 EXHIBIT 1-A NRHA agrees to provide City with the following benefits during the term of the Agreement: A. GENERAL ADVERTISING BENEFITS 1. Each year of the Advertising Agreement, NRHA shall provide space in twelve (12) monthly issues of NRHA Reiner magazine at no charge foi a camera-ready one (1) page, full -color advertisement prepared by City. Any placement upgrade charges will be the responsibility of City. City is responsible foi providing said camera-ready full -page advertisement to NRHA based on the current published deadlines in the NRHA Reiner Media Guide. 2. Each year of the Agreement, NRHA shall provide an opportunity to add an embedded video file to City's NRHA Digital Reiner ad in twelve (12) monthly issues of NRHA Digital Reiner at no charge. Embedded videos must be FLV files and are limited to 1GB per file. 3. Each year of the Agreement, NRHA shall provide space in four (4) quarterly issues of the NRHA produced Take the Reins magazine at no charge for a camera-ready, one (1) page, full -color advertisement prepared by City. Take the Reins magazine is published in cooperation with the Interscholastic Equestrian Association. Any placement upgrade charges will be the responsibility of City. City is responsible for providing said camera-ready full -page advertisement to NRHA based on the current published deadlines in the Take the Reins Media Guide. In the event that NRHA no longer publishes Take the Reins magazine, NRHA reserves the right to substitute alternative benefits at equal or greater value. B. NRHA FUTURITY & ADEQU- m NORTH AMERICAN AFFILIATE CHAMPIONSHIP SHOW ADVERTISING BENEFITS: 1. City shall receive a no charge, camera-ready full -page, four-color advertisement prepared by City in the NRHA Futui ity & Adequan® North American Affiliate Championship Show Program City is responsible for providing said camera-ready full -page advertisement to NRHA based on the current published deadlines in the NRHA Futurity Program Media Guide. C. NRHA DERBY ADVERTISING BENEFITS: 1. City shall receive a no charge, camera-ready 6-Card Double Banner, four-color advertisement prepared by City in both the NRHA Derby Open and Non Pro Draw Sheets. City is responsible for pi oviding said camera-ready advertisement to NRHA based on the current published deadlines in the NRHA Derby Draw Sheets Media Guide. Mutual Settlement Agreement and Release 10 of 10