HomeMy WebLinkAboutContract 44454 (2)i
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TRUST FUND EVENT SUPPORT CONTRACT
This TRUST FUND EVENT SUPPORT CONTRACT ("Agreement") is made and
entered by and between the CITY OF FORT WORTH (the "City"), a home-rule municipality
organized under the laws of the State of Texas and EQUINE MARKETING GROUP, INC.
("Company").
RECITALS
The City and Company (collectively, "Parties") 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 Reichert Celebration (the "Event"), which is held not
more than one time in Texas or an adjoining state 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
chose the Will Rogers Memorial Center to ser•ve as the sole venue for the Event.
C. TEx. REv. Clv. S`ra`r. art. 5190.14, § SC, as amended (as it may be amended from
time-to-time, the "Act") authorizes the Texas Comptroller of Public Accounts ("Comptroller")
to establish the Events Trust Fund (the "Fund").
D. In accordance with the Act, the City, as the endorsing municipality, submitted a
request to the Comptroller for participation in the Fund, which included, among other things, the
submission of an economic impact study commissioned by Company and a term sheet between
the Parties that was intended to serve as the basis for the development of this Agreement ("Term
Sheet").
E. Company engaged Gerald L. Grotta, Ph.D. of Grotta Marketing Research
("Grotta") to prepare an Analysis of the Economic Impact of the Reichert Celebration for the
Event for purposes of submitting to the Comptroller to determine eligible Texas state tax
revenues generated by the Events.
F. The Comptroller has, pursuant to subsection (b) of the Act, 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 Comptroller, by letter to the City dated February 24,
2012, has determined that it will deposit $500,062.00 of State funds into the Fund if matched by
$80,010.00 in remittances by or on behalf of the City, for a total Fund amount of $580,072.00.
As an endorsing municipality under the Act, the City remitted $80,010.00 to
Trust Fund Event Support Contract
City of Fort Worth and Equine Marketing Group, Inc.
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deposit into 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.
H. This Agreement is intended to formally capture the Parties' understandings of the
terms set forth in the Term Sheet and any subsequent understandings and serve as such event
support contract for the Event.
I. 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").
J. The obligations of the Parties under the Agreement are set forth in Section 5 and
include a plan jointly prepared by the Parties that outlines the Permissible Uses that the Parties
agree were 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, which
said plan is attached hereto as Exhibit "A" and incorporated herein for all purposes (the "Event
Plan").
K. 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
sporting or athletic events beneiitting 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:
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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
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2. TERM.
This Agreement is effective as of the 24t" of February, 2012 as contemplated by the
Parties and in the Term Sheet and shall remain in full force and effect until the later of (i) the
date set forth in the Term Sheet 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.
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City of Fort Worth and Equine Marketing Group, Inc. Page 2 of 11
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, as set forth in the Term Sheet, remitted a total of $80,010.00 for the
Event to the Comptroller, as set forth in the February 24, 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. OBLIGATIONS OF THE PARTIES.
a. Company. The Event was held at the Will Rogers Memorial Coliseum, as
agreed to by the Parties and reflected in the Term Sheet. Company agrees that the covenants and
promises made in this Agreement, including, but not limited to, the City's and Company's
reimbursable expenses set forth in the proposed Event Plan were necessary for conducting the
Event.
b. Citv
(i) Per the Term Sheet, the City was obligated to host the Event and
reimburse the City and Company for the actual expenses related to the Event, as
permitted by the Act and consistent with the Permissible uses, as outlined in the
Event Plan, in accordance with the terms of this Agreement, provided that:
(1) the expenses are eligible for payment by the ETF program;
(2) the Company submits proof of the Company's expenses set forth in
the Event Plan to the full satisfaction of the City and the
Comptroller; and
(3) the combined amount of the funds claimed for reimbursement by
the City and the Company do not exceed the amount authorized for
reimbursement by the Comptroller.
(ii) Per the Term Sheet, the City shall be responsible for distributing the Total
Fund Amount to reimburse the City and Company for the expenses set forth in the
Event Plan in the following manner: (1) to the City for reimbursement of the
City's expenses related to the Event, as permitted by the Act and consistent with
the Permissible Uses as generally outlined in the Event Plan; and (2) second,
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City of Fort Worth and Equine Marketing Group, Inc.
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within ten (10) business days following receipt by the City of the Total Fund
Amount and sufficient expense documentation by Company, to the fullest extent
allowable under the Permissible Uses, as generally outlined in the Event Plan, all
amounts remaining in the Fund to Company to reimburse Company for actual
costs incurred by Company and for enhancements related to the Event consistent
with the Event Plan. The City will be responsible for dealing with the
Comptroller with respect to disbursements from the Fund.
(iii) The Company shall provide invoices to the City for expenses incurred.
The Company shall provide any supporting expense documentation as required by
the City or as requested by the Comptroller. Upon approval of payments by the
Comptroller, the City will make reimbursement payments to the Company upon
receiving payment from the Comptroller. The City will be responsible for dealing
with the Comptroller with respect to disbursements from the Fund.
(iv) The reimbursements set forth in this Agreement are limited to the
maximum amount available from and approved for eventual distribution from the
ETF established for this Event. Under no circumstances shall the City be
obligated to Company for more than that maximum sum when, and if, received
from the ETF. The Company shall not seelc reimbursement from the City for any
costs not distributed by the Comptroller from the ETF established for this Event.
(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) 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 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 this Agreement shall
automatically terminate and Company hereby waives it right to receive any
reimbursement or distribution from the Total Fund Amount under this Agreement.
6. COMMITMENT OF COMPANY.
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.
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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.
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.
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
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City of Fort Worth and Equine Marketing Group, Inc. Page 5 of I 1
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:
Citv 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
Company:
Equine Marlceting Group, Inc.
Attn: Terry L. Schroeder, CEO
PO Box 380
Williamsburg, Iowa 52361
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.
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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.
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 of Fort Worth and Equine Marketing Group, Inc. Page 7 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 KIND OR NATURE, INCLUDING, SUT NOT LIMITED TO, THOSE FOR
PROPERTY OR MONETARY LOSS, OR OTHER HARM FOR WHICH RECOVERY OF
DAMAGES IS SOUGHT, OF WHATSOEVER HIND 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 NONPERFORIVIANCE OF THIS AGREEMENT.
b. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT SY 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 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
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 Equine Marketing Group, Ina Page 9 of 11
EXECUTED to be EFFECTIVE as af ihe date set forth Section 2 o:f fhis Agz•eement:
CYTY OF F�RT WORTH:
By:
Susan Alanis
Assistant Ciiy Manager
APPROVED AS TQ FORM AND LEGALITY:
Assistant City Attorney
ATTEST:
City Secx•etary
Tnisf Fnnd Fvent Support Contract
City of Fort �i�ortii and Equine Marketing Group, Inc.
Page 1 Q of I Q
EQUINE MARKETIlVG GROUP, INC:
EXECUTED to be EFFECTIVE as of the date set forth Section 2 of this Agreement:
CITY OF FORT WORTH:
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Susa�Alanis
Assistant City Manager
APPROVED AS TO FORM AND LEGALITY:
Trust Fund Event Support Contract
City of Fort Worth and Equine Marketing Group, Inc.
EQUINE MARI�ETING GROUP, INC:
By:
Terry L. Schroeder
CEO
ppF�CIpL RECORD
CITY SECRETARY
FT. WORTH, TX P
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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 incurred
Event, are appropriate for reimbursement under the Act as Permissible Uses to
the Fund:
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be reimbursed by
City of Fort Worth Expenses
• Improvements or maintenance to the City's real property within the designated market
area related to the hosting of the Event;
• Water or food necessary to the health or safety of people or animals involved in hosting
or participating in the Event;
• Operational costs of the City;
• City of Fort Worth Public Events Department services, including, but not limited to any
and all personnel and administrative costs;
• City of Fort Worth City Attorney's legal or professional service costs;
• Costs attributable to inclement weather occurring immediately before, during, or
immediately after the Event, except those costs for damages; and
• Any other direct costs resulting from the requirements under this Agreement that are not
prohibited by the Act.
Company Expenses
• Advertising and Promotion for the Event
: . . .�?
• Direct costs resulting from the requirements under this Agreement that are not prohibited
under the Act
• Purse Payouts
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