HomeMy WebLinkAboutContract 44474 A'*'ITY SECRETARY
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CONMCT MOO.. Moo
TRUST.,., UN EVENT SUPPORT CONTRACT
This TRUST US's'° FU VENT SUPPORT CONTRACT ("Agreement") is sae an
entered by and between the CITY off' FORT WORTH (the "City"), a hone-rile municipality
organized under the laws of the State of Texas and ARABIAN HORSE SSOCIATION
(AHA) REGION 9 Company").
RECITALS
The City and Company hereby agree that the following statements are tree and correct
and constitute the basis upon which the City and Company have entered into this Agreement.-
A, Company operates the Arabian Horse Association Region 9 Championship
Sport Horse Show (thee "Event") to he held on May 28 _ June 2, 2013, which specific Evert is
held not more than one time in Texas or an adjoining ing st, to in any year.
B,. Company conducted cted a highly-competitive, multi-state, site-se�leetion process
pursuant to an application by the City to evaluate, the proper venue to conduct the Evert and has
chosen the Will Rogers Memorial Center to serve as the sole venue for the Evert.
C. TEE. REV. CIV. STA . art. 5 190.1 , § 5C, as aniended as it may he amended fTom
time-to-time,e, the het") authorizes the Texas Co rr troller of Public Accounts ("Comptroller")
to establish the Events Trust Fund (the "Fund"). In accordance with the Act, the City, as the
endorsing municipality', submitted a request to the Comptroller for participation
which mel ded, among other things, the submission of an economic impact study eomi-isslored
by Company..
D. Company engaged Gerald L. Grotta, Ph.D. off" Grotta, Marketing Research
("'Grottall) to prepare an Analysis of the Economic Impact for the Event for purposes of
submitting to the Comptroller to determine eligible Texas state, tax revenues generated by the
Events.
E. The Comptroller has, pursuant to subsection h 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 Evert and related activities
F. Based on its analysis, the Comptroller, by letter to the City dated February 20,
2013, has determined ed that it will deposit $1 01,806.00 of State funds into the Fund if matched by
$161,290.00 in remittances, by or on. behalf of the City, for a total Nand amount Of 1 18,o96.0�0.
As an endorsing municipality under the het, the City has or will remit $16,290.00 to the
Comptroller for deposit into the Fund. Funds deposited into the Fund may he used by the City to
fulfill its obligations under a n event support contract, as defined in the het, governing the Event.
This Agreement is intended to serve as such eve nt support eontr et.
OFFICIAL
CITY SECRETIARY
Trust Fund Evert Support Contract TXJ
C t Fort Wove and AJHA R lion 9 . WO,RTHO TX Page I of 10
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 " er ssih a Uses").
H. 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 Pere-nissible Uses that the Parties
agree are, without limitation, necessary for the City to provide incremental services necessary for
the Event as well as other costs necessary for 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"').
1. 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 agreen'ients, that promote major
sporting or athletic events benefitting the City and secured, in part, on account of the Fund and
the provisions of the Act.
NOW, TAE RIEFORE, 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 kknowledged, the parties agree as follows.-
AGREEMENT
L 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 February 20, 2013 and shall remain in full force and
effect, until the later of(i) December 31, 2013 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.
I APPLICATION FOR EVENT T'RUST FUND DISBURSEMENT.,
The City has previously applied to the Comptroller for the creation of one or more Events
Trust Funds (each. an "ET F"') for the Event under the provisions of Act.
4, TRUST FUND DEPOSIT.
Trust Fund Event Support Contract
City of Fort Worth and AA Region 9 Page 2 of 10
In consideration of'Compangs selection of Will Rogers Memorial Center as the sole site
for the Event, the City will remit a, total of$16,x for the Event to the Comptroller,, as set
forth in the February 20, 2013, letter that was issued by the Comptroller estirnating 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 Cif 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 TF(s) in accordance with the Act
shall be referred to herein as the "Total Fund Amount."
5. OBLIGATIONS OF THE PARTIES.
a. Company. Company i's obligated to hold and conduct the Event at Will
Rogers Memorial Coliseum on May 2,8 —June 2, 2013, Company also agrees that the covenants
and promises made in this Agreement, including, but not limited to, the City's and Company 11 s
reimbursable expenses set forth in the proposed Event Plan are necessary for conducting the
Event.
b.
(1) The City is 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 Fie; -nis,sible 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 ET F 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), 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, with
the Company receiving reimbursement for actual expenses incurred by the
Company up to a maximum of 75% of the Total Fund Amount.
(iii) The Company shall provide invoices to the City for expenses incurred.,
0
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 ftorn the Fund.
Trust Fund Event Support Contract
City of Fort Worth and AHA Region 9 Page 31 of 10
(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 ma,xin,ium, sum when, and if, received
from the ETF. The Company shall not seek 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 ( Period"). The Cure Period can be
extended by written agreement of the Parties. Notice shall be as prescribed
Section 11. If Company cures its outstanding obligations within the Cure Period,
then the City will make distributions frorn the Total Fund Amount in accordance
with the procedures set forth in, in this Section, which, procedures will be anew
on the date Company cures, its outstanding obligations, to the City. If Company
falls 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,
In. consideration of the benefits set forth herein, Company will. use commercially
reasonable efforts to conduct the Event during, the Term at Will Rogers Memorial Center.
Company will also cooperate with the City in documenting costs incurred by Company for the
Event to evidence the Permissible Uses. Company will pay the City an amount equal to the City
Remittance contemporaneously upon the City's distnbution to Company from the Total Fund
Amount in accordance with Section 5 above.
70, DOCUMENTATION.
Company hereby certifies and warrants that all documentation submitted to the City fully
and accurately represents the actual costs incurred by Company in hoisting 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
Trust Fund Event Support Contract
City of Fort Worth and ABA Region 9 Page 4 of 10
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 speci,fic perforirriance. 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.,
91 TERMINATION FOR CAUSE,.
The City may terminate this Agreement if Company falls to comply with any tern
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 froim
City, unless,otherwise agreed to in wnting by the parties.
101. SEVERABILITY.
If any provision of thi,s Agreement is, I'leld to be illegal, invalid, or unenforceable under
0,
pr sent or future laws, the legality, validity, and enforceability of m
the reaining 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 art es to it.,
NOTICES,
Any notice, request, or other,communication required or permitted to be given under this
Agreement shall be given in writing by delivenng it against receipt for i,t, by depositing it with an
by depositing 't * 1, 1
overinight delivery service or 1 in a receptacle mairita"ned 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, shell be deemed given
when mai,led). Notice sent by any other manner shall, be effective upon actual receipt by the
pa,rty,to be notified. Actual notice, however and from whomever given or receivea, shall always
be effective when received. Any party"s address for notice maybe changed at an y t'ime ana I f*
rrom
time to time, but only after thirty (30) days' advance written notice to the other parties and shall
be the moist 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 wi l. not obligate that party
to give any future notice.
I Company.
City Of Fort Worth Region 91 AHA,, .,I'nc.
Ati Director, Public Events Dept. Attn: Margo Shallcroiss, Director
1000 TluockmOrton 30824 Bluck Lane
Fort Worth, TX 76102 Bulverd,e, TX 78163
Trust Fund Event Support Contract
City of Fort Worth and AJiA Region 9 Page 5'of 101
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.
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 it 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
Trust Fund Event Support Contract
City of Fort'Worth and AHA Region 9 Page 6 of 10
period of delay, so that the time period applicable to such perfonnance 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.,
206 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 f"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 comb�ination, shall be construed together and
shall constitute one and the same agreement.
22. AMENDMENT.
No amendment, modification, or alteration of the terms of this Agreement shall be
binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by
the Parties hereto.
23. INDEMNIFICATION AND RELEASE,
a. COMPANY COVENANTS AND AGREES TO AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS, AND DEFEND., AT ITS OWN EXPENSE, CITY
FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS,
ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES
(INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF
DEFENSE), PROCEEDINGS,, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS
Trust Fund Event Support Contract
City of Fort"oral i and AIIA Region 9 Page 7 of 10
..................................... ....
Or Y KIND OR NATURE, INCLUDING,, BUT NOT LIMITED TO, THOSE FOR
PROPERTY Off: MONETARY LOSS, R OTHER HARM FOR WHICH RECOVERY OF
DAMAGES IS SOUGHT, OF WHATSOEVER ND R CHARACTER, HETHER
AL OR ASSERTED, ARISING OUT OF, IN CONNECTION WITH, OR RESULTING
FROM ANY ACT, ERROR, OIL OMISSION OF COMPANY AND ITS RESPECTIVE
OFFICERS,"ICERS, GENTS9 EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS.,S,
REPRESENTATIVES IN CONNECTION WITH THE EXECUTION9 PERFORMANCE,
ATT EMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT.
w IF ANY ACTION OIL PROCEEDING SHADE BE BROUGHT BY OR
AGAINST" THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM,
COMPANY, NOTICE FROM CITY, SHALL DEFEND SUCH ACTION O
PROCEEDING, AT COMPANY'S EXPENSE, BY OR THROUGH ATTORNEYS
REASONABLY SATISFACTORY TO CITY.
ct IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW
OR HEREAFTER I EFFECT AND AFFECTING THE VALIDITY IT' OR
ENFORCEABILITY OF' THE INDEMNIFICATION OBLIGATION UNDER THIS
SECTION 2 , SUCH LEGAL, LIMITATIONS I"TATIONS ARE MADE A FART OF TFIL
INDEMNIFICATION OBLIGATION SHALL OPERATE TO AMEND THE
BRING INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO,
THE PROVISION INTO CONFORMITY WITH THE I BENTS OF
SUCH LIMITATIONS, AND, AS SO MODIFIED,, TH INDEMNIFICATION
OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFF ECT.
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 teni'li natior of this Agreement.
24. AUDIT.
Cowry agrees that City and its internal auditor will have the right to audit, which shall
include, but not be limited to, the n*ght to complete access to and the right to examine, the
financial and business records of Company that relate to this Agreeme nt, including, but not
limited to, all necessary books, papers, documents, records, and personnel, (collectivel
"Records" in order to determine compliance with this Agreement. The Company shall snake all
Regards available to City at 1 000, Throckmorton Street, :pert Worth, Texas or at another location
in City acceptable to both parties within thirty 30 days after notice by City and shall otherwise
cooperate dully with City during any audit. Notwithstanding, anything to the contrary herein, this
section shall survive expiration or earlier termination of this Agreement.
25. ASSIGNMENT.
Test Fund Evcnt Support C ntra
City of Fort Worth and AIAA Region 9 Page 9 of 1
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Neither 'party hereto shall assign or tram-fer its intcmsst horein' without P or,wry
consi,:tnt of the othoTpa.Tly, and avy attR.-,,mpted or tvaisfer of all or any pari hcrcof
1"thout 3, (*h prior written consent shall be void, 71ds W1 be binding upon and,
shall inure to the benefit of City and Comgany and, Its respce%tive successors and permitted
oz signs#
266 1 RJZATj
'tic authorIzcd by
By cxevjtM' g this Agreeme.-Tit, Company"s agent a- rrns t1rot he or s. is
I tor made hcrcin with regard to;
6e Compariy to execute this ALo-eemert and tI.,ntt 11 i,-.q)f-esenfat" .0
C pany',%.; JdanfiLy, address, and gal,`l s,taws part; t-Ors.b.ip, .di ideal, dba, cte.) are,
true and correct.
2?9 B L v 1,E.,A OUOVAS.LLO
The-, Fatlie�3 acknowledg* Rkxly ti,,,nd jks� L,,..tve revie%A red and revised thig
Agreemtnt and that the normal,rues of"oonstract'orl to 1"he, effecl -tha l. any wribiguitios are to be,
re,solved against the drafting party shall not be en,,t ploy ed, in the interpretation of this Agreetrient
or exhibits hereto.
EXECUTED to be.EFFECTIVE as of the date se-t forth�,cctlon 2,Of this Agroement:',,�
CITV OF FORT WORTH* TZIE1,15,"101419 AJAA,INC.,,
By'$ sOAA
Assistant C iy. Manager
APPROVED A!3 TO FORM AND I-ECiALITY:
Asssistant Clty.,Attorney
00
AUF
213
J. Kay,;er
V City Sccrcta-y
Trust F utid E.ViellL SOPOLf I Co apt(aet
City of"Faft Worih and,jkHA Region 9 9 of it)
ty 3 13 S S V I S"T."(18017V H 0 1 'El)3 t El C t 0 Ef 8 XVJ NdSO L 61 OZ/9 LO/90
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
-3
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 affirni.s that he or she is authorized by
the Company to execute this Agreement and that all representations rnade 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: REGION 9 BHA,, INC.:
00
yo-
us Alanis Margo Shallcross
Assistant City Manager Director
APPROVED AS TO FORM AND LEGALITY:
I /W
As,sistq4feity Attorney
X0000
tt)o
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0
J 02
t' Vary J. Kayser *"01901
1V 00000000
City Secretary
Trust Fund Event Support Contract OFFICIAL, RECORD
City of Foil Worth and ABA Region CITY SECRETARY Page 9 of 10
"o,WORTNj TX
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 t 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 and related to the
Event are appropriate for reimbursement under the Act as Permissible Uses to be reimbursed by
-the Fund:
Cit of I iN t"
y ort Worth Expenses
0 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 an,imals, involved in hosting
or participating in the Event-
• Operational costs, of the Cityl
• City of Fort.Worth Public Events Department services, including, but not limited to any
and all persomiel and administrative costs,-
City of Fort Worth City Attorney's legal or professional service costs;
0 Costs attributable to inclement weather occurring immediately before, during, or
immediately after the Event, except those costs for damages-, and
0 Any other,direct costs resulting,from the requirements under this Agreement that are not
prohibited by the Act.
Core p,gW Expenses
• Advertising and Promotion for the Event
• Awards
Direct costs resulting from the requirements under this Agreement that are not prohibited
under the Act
Purse Payouts
Trust Fund Event Support Contract
City of Fort Worth and ABA Region 9 Page 10 of 10