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HomeMy WebLinkAboutContract 44737 (2)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 AMERICAN MINIATURE HORSE ASSOCIATION (AMHA) ("Company"). RECITALS The City and Company 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 American Miniature Horse Association World Championship Show (the "Event") to be held on September 26 — October 5, 2013, which specific Event 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 has chosen the Will Rogers Memorial Center to serve as the sole venue for the Event. C. TEx. REV. CIv. STAT. art. 5190.14, § 5C, 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"). 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. D. Company engaged Gerald L. Grotta, Ph.D. of Grotta Marketing Research ("Grotta") to prepare an Analysis of the Economic Impact of the AMHA World Championship Show 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 (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; F. Based on its analysis, the Comptroller, by letter to the City dated June 12, 2013, has determined that it will deposit $38,200.00 of State funds into the Fund if matched by $6,113.00 in remittances by or on behalf of the City, for a total Fund amount of $44,313.00. As an endorsing municipality under the Act, the City has or will remit $6,113.00 to the Comptroller for 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. This Agreement is intended to serve as such event support contract. Trust Fund Event Support Contract City of Fort Worth and American Miniature Horse Association RECEIVED AUG 21 2013 OFFICIAL RECORD CITY SECRETARY, i of io FT. WORTH, TX G. 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"). 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 Permissible 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"). I. 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 benefitting 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: AGREEMENT 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 purposes. 2. TERM. This Agreement is effective as of June 12, 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. 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. Trust Fund Event Support Contract City of Fort Worth and American Miniature Horse Association Page 2 of I0 4. TRUST FUND DEPOSIT. In consideration of Company's selection of Will Rogers Memorial Center as the sole site for the Event, the City will remit a total of $6,113.00 for the Event to the Comptroller, as set forth in the June 12, 2013, 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. Company is obligated to hold and conduct the Event at Will Rogers Memorial Center on September 26 — October 5, 2013. Company also agrees that the covenants and promises made in this Agreement, including, but not limited to, the Company's reimbursable expenses set forth in the proposed Event Plan are necessary for conducting the Event. b. City. (i) The City is obligated to host the Event and reimburse the 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) The City shall be responsible for distributing the Total Fund Amount to reimburse the Company for the expenses set forth in the Event Plan. (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. Trust Fund Event Support Contract City of Fort Worth and American Miniature Horse Association Page 3 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 maximum 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 ("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. 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 distribution to Company from the Total Fund Amount in accordance with Section 5 above. 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 Trust Fund Event Support Contract City of Fort Worth and American Miniature Horse Association 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 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 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: City of Fort Worth Attn: Director, Public Events Dept. 1000 Throckmorton Fort Worth, TX 76102 with copies to: Company: American Miniature Horse Association Attn: Randy Peacock, Controller 5601 South Interstate 35 W Alvarado, TX 76009 Trust Fund Event Support Contract City of Fort Worth and American Miniature Horse Association Page 5 of 10 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 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. Trust Fund Event Support Contract City of Fort Worth and American Miniature Horse Association Page 6 of 10 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. 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, BUT NOT LIMITED TO, THOSE FOR PROPERTY OR MONETARY LOSS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER Trust Fund Event Support Contract City of Fort Worth and American Miniature Horse Association Page 7 of 10 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 NONPERFORMANCE OF THIS AGREEMENT. b. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY 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. 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 Trust Fund Event Support Contract City of Fort Worth and American Miniature Horse Association Page 8 of 10 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. EXECUTED to be EFFECTIVE as of the date set forth Section 2 of this Agreement: CITY OF FORT WORTH: By: Alanis Assistant City Manager AMERICAN MINIATURE HORSE ASSOCIATION: APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney ATTEST: Mary J. Kayser City Secretary By:�`�'�-r�• Randy Ped✓ock Controller Trust Fund Event Support Contract City of Fort Worth and American hliniature Horse Association Page 9 of 10 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. EXECUTED to be EFFECTIVE as of the date set forth Section 2 of this Agreement: CITY OF FORT WORTH: By: ' U C�..5— By: Suah Alanis Randy Peacock Assistant City Manager Controller ; 3 la- i t (3 AMERICAN MINIATURE HORSE ASSOCIATION: APPROVED AS TO FORM AND LEGALITY: Assistar ity Attorney ATT ST: Mary 1 t. ysr City Secretary Trust Fund Event Support Contract City of Fort Worth and American Miniature Horse Association OFFICIAL RECORD CITY SECRETARY Page 9 of 10 FT. WORTH, 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 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 and related to the Event are appropriate for reimbursement under the Act as Permissible Uses to be reimbursed by the Fund: Company's Expenses • Advertising and Promotion for the Event • Awards • Purse Payouts Trust Fund Event Support Contract City of Fort Worth and American Miniature Horse Association Page 10 of 10