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Home My WebLink AboutContract 44552-A3 (2)�.�� ti�� o _ � 5 --.� THIItD AMENDM�NT TO CITY S�Cl2ETARY CONTRACT NO. 44552 A LIC�NSE AGREEMENT BETWEEN TH� CITY OF I+ORT WORTH AND FORT WORTH SYMPHONY ORCH�STRA ASSOCIATION THIS TIIIRD AM�NDMENT TO CITY SECR�TARY CONTRACT NUMBER 44552, as amended, ("Third Amendment") is inade and entered into by and between the City of Fort Worth ("City"), a home-rule municipal corporation acting by and through its duly authorized Assistant City Manager, and the Fort Worth Symphony Orchestra Association ("FWSOA"), a Texas nonprofit acting by and through its duly authorized President. WHEI2EAS, on June 18, 2013, the City and FWSOA entered into a license agreement providing FWSOA with use of a certain portion of Fort Worth Botanic Garden ("Garden") for the purpose of conducting the "Concerts in the Garden" ("CITG") series, consisting of performances by the FWSOA and other artists (`Bvent"), the same being Fort Worth City Secretaiy Contract ("CSC") Number 44552; WHEItEAS, on or about Februa�y 18, 2014, the parties amended CSC 44552 to address fee modifications for the 2014 Event, the same being CSC No. 44552-A1; WHEREAS, on or about April 7, 2015, the parties renewed CSC 44552 and further amended it to address additional fee modiiications for the 2015 and 2016 Events, the same being 44552-R1A2 (CSC Nos. 44552, 44552-A1, 44552-R1A2 are collectively referred to herein as the "Agreement"); WHEREAS, the parties desire to revise the Agreement to, among other things, reflect current market conditions related the sale of inerchandise and promotional items at the Event; and NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, tl�e City and the FWSOA do mutually covenant and agree to renew and amend the Agreement as follows: I. Section 11.02 is revised to clarify the arrangement between the parties concerning the sale of merchandise and to revise the payment structure for the sale of inerchandise. Section 11,02 is hereby amended, in whole, to read as follows: "11.02 FWSOA shall maintain responsibility for, and conh•ol of, the creation and design of all graphic artworl<, advei�ising, printed materials, signs, and imprinted souvenir merchandise associated witl� the CITG. Except as set forth in Section 11.03, FWSOA shall provide the FWBS with all merchandise to be sold at the Event. Speci�cally, and without limitation, the FWSOA, at its sole cost and expense, shall design an official CITG T-shirt and provide such T-shii•ts to FWBS to be offered for sale by FWBS, as exclusive concessionaire. FWSOA shall provide the FWBS with enough such T-shirts to last for the entirety of each yearly Event. FWSOA shall work with the FWBS to conduct an initial and final inventoiy of all merchandise provided to the FWBS. At the conclusion of each yearly Event, the FWSOA shall worlc with the FWBS to provide a full accounting of such merchandise, including, but not limited to, net revenue generated _ _— - _ fi•om the sale of the merchandise. The FWSOA shall retain ownership of any unsold merchandise and work with the FWBS on the return of any such merchandise. ;�'1��. ��dD ,�� ; ��'ta'�Y ��R��'Al�Y crA�� ThirdAmendmenttoCSC44552 �`�-� JI_Y1�� i"��R�� W�ll shall not be responsible or liable for any inerchandise, including, but not limited to, any um•eturned merchandise. After conducting a full accounting of the merchandise, the FWSOA shall ensure that the FWBS receives 20% of the net revenue from all merchandise sales. FWSOA retauis the right to sell CITG branded merchandise at any time except dm•ing the annually scheduled dates for the Event. Net revenue ineans and includes the total amount of money received or to be received fi�om all sales, whether for cash or credit, whether collected or uncollected, made as a result of the rights granted herein less expenses and any sales or other taxes imposed by local, state or federal law that are separately stated to and paid by a pm•chaser of any item." II. Section 11.03 is revised to reduce tl�e percent of gross revenue to be received by the FWBS fi�oin the sale of certain promotional items fi�oin 20% to 10%. Section 11.03 is hereby amended, in whole, to read as follows: "11.03 The performeis at the Event may sell promotional items provided that 10% of all gross revenue fi•om the sale of such merchandise is paid to the FWBS. Gross revenue means and includes the total amount of money received or to be received by the performer or by any agent, employee, or subcontractor of the performer fi•om all sales, whether for case or credit, whether collected or uncollected, made as a result of the rights granted herein; provided, however, that any sales taxes imposed by local or federal law that are separately stated to and paid by a purchaser of any item sold by the performer fi•om an authorized service or activity under this Agreement and directly payable to a taxing authority shall be excluded from the computation of gross revenue. The FWSOA shall require that such payment be made to the FWBS and be on site during the Event. The FWSOA shall also send a copy of such contracts to the Garden director and to the FWBS chairperson. The FWSOA shall be liable for any shortfall in payments by the performers as required hereunder." III. Section 18.01 is revised to specifically include, without limitation, the wrongful exclusion of firearms as a type of unlawful use of the Premises. Section 18.01 is hereby amended, in whole, to read as follows: "18.01 FWSOA covenants and agrees that it shall not engage in any unlawful use of the Premises, including, but not limited to, the wrongful exclusion of firearms under Chapter 411, Subchapter H, of the Texas Government Code and Chapter 229 of the Texas Local Government Code. FWSOA further agrees that it shall not permit its officers, agents, servants, etnployees, contractors, subconti•actors, patrons, licensees or invitees to engage in any unlawful use of the Premises, and FWSOA shall immediately remove fi•om the Premises any person engaging in such unlawful activities. Unlawful use of the Premises by FWSOA itself shall constitute an immediate bi•each of this Agreement." �� 1. Effective October 1, 2015, the Fort Woi�th City Council revised the name of the Parlcs and Community Seivices Department to the Parl< and Recreation Department. Any reference to the Parlcs and Community Services Department in the Agreement ,shall liereiiiafter mean and include the new Parl< and ,. __ _ f Recreation Department. ';; �:�;��:'��,��, ti��,��; � I', ��;IYY S�CRETA6tY � Third Amendment to CSC 44552 � (��, ��R'�H, T� 2 of 3 2. All other terms and provisions of the Agreement between the City and FWSOA shall remain in full force and effect except as specifically amended or set forth in this Third Amendment. 3. All terms in this Third Ainendment that are capitalized but not defined shall have the meanings assigued to theln in the Agreement. IN WITNESS WHEREOF, the pai�ties liave executed this Third Amendment in multiples to be effective on June 1, 2016. CITY OF FORT WORTH � � �i BY� �' � ��`�r� �� - Susan Alanis Assistant City Managei• APPROVED AS TO FORM AND L�GALITY: Tyler F�1-� Assistant City � � �� Vlar f Kayser City Seci•etaiy f,� FORT WO�� SYMPHO�.�VY ORCH�S�'I� ASSOCI�T�ON C !r ,�7�L�7 >_ ,, �o� �� `�Wvz,�ce „� j�� , �`"� �� ::� �� .r,,.,.�;;-�� Contract Authorization: M&C: G26256 (May 14, 2013), C- `'� ]�� (June 14, 2016) OFFICI�L RECORD CITlf SECREI'ARY �7'. VI►ORTH, TX Third Amendment to CSC 44552 3 of 3 City of Fort Worth, Texas Mayor and Council Communication ' COUNCIL ACTION: Approved on 6/14/2016 DATE: Tuesday, June 14, 2016 REFERENCE NO.: **C-27770 LOG NAME: 80BGCONCERTGOODSAMEND SUBJECT: Authorize Third Amendment to City Secretary Contract No. 44552, a License Agreement with the Fort Worth Symphony Orchestra Association for Use of the Fort Worth Botanic Garden for the Concerts in the Garden Series, to Revise the Fee Arrangements for the Sale of Merchandise and Promotional Items (COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council authorize the third amendment to City Secretary Contract No. 44552, as amended, a License Agreement with the Fort Worth Symphony Orchestra Association for the use of the Fort Worth Botanic Garden, to reduce the fees assessed for merchandise and promotional sales at the Concerts in the Garden to more accurately align with current industry standards, with such changes to be effective beginning on June 1, 2016. DISCUSSION: Over the past 25 years, the City and the Fort Worth Symphony Orchestra Association (FWSOA) have brought to the citizens of Fort Worth the Concerts in the Garden (CITG) series. On May 14, 2013 (M&C C-26256), the City Council authorized the execution of the current contract with the FWSOA for the use of certain portions of the Fort Worth Botanic Garden for the purpose of conducting the CITG series of perFormances by the FWSOA and other artists (CSC No. 44552). For the 2016 concert series, the FWSOA will pay the Fort Worth Botanical Society (FWBS) a rental fee of $1,500.00 for each concert date, as well as 1.75 percent of the gross value of all revenue from sales of concert tickets and parking spaces on City-owned property. In addition, the FWSOA will pay the FWBS the amount of $1,200.00 for dates on which the symphony wishes to reserve the bulk of the Botanic Garden Center parking lots. This request would amend the contract terms for the sale of inerchandise during CITG events. As part of the FWBS's non-exclusive concessionaire's rights with the City of Fort Worth, the FWBS receives a percentage of gross revenue from all promotional items sold by or for the performers at the CITG. The amount the FWBS receives will be reduced from 20 percent to 10 percent of gross revenue. This reduction will have minimal effects on City revenues from CITG and will bring fees more in line with industry standards, thus assisting the FWSOA in recruiting quality performers. Furthermore, FWBS currently retains all revenue generated from the sale of CITG-branded merchandise. Under the proposed amendment, FWBS will retain 20 percent of the net revenue generated from the sale of CITG-branded merchandise, with the FWSOA receiving 80 percent. The amendment will also seek to clarify ownership rights of all t-shirts and other CITG-branded merchandise and place the onus on FWSOA to produce and provide all such merchandise to FWBS. As FWBS will no longer incur the costs of producing merchandise and holding unsold items in inventory, any reduction in City revenue from this change is also expected to be minimal. All funds paid to the FWBS are to be allocated toward Logname: 80BGCONCERTGOODSAMEND Page 1 of 2 maintaining infrastructure and addressing safety concerns throughout the Botanic Garden. All other major terms and conditions of the contract remain unchanged. Staff is recommending that the revisions be effective beginning on June 1, 2016 to accommodate the full 2016 CITG. The Botanic Garden is located in COUNCIL DISTRICT 7 and serves the entire City of Fort Worth. FISCAL INFORMATION / CERTIFICATION: The Director of Finance certifies that this action will have no material effect on the City's Funds as the estimated revenue loss is anticipated to be less than $2,000.00. FUND IDENTIFIERS (FIDs): und Department Accou ID Project Prog ID ity Budget Year ity Budget Year Reference # Chartfield 2' undl Department Accou ID Project Progra ID CERTIFICATIONS: Submitted for City Manager's Office b� Originating Department Head: Additional Information Contact: ATTACHMENTS 1. C-26256.FWSOA.pdf (Public) 2. Form 1295.pdf (Public) Logname: 80BGCONCERTGOODSAMEND Reference # Chartfield 2' Susan Alanis (8180) Richard Zavala (5704) Sandra Youngblood (5755) �r it•I!1 Page 2 of 2