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HomeMy WebLinkAboutContract 39668CITY SECRETAFIV ONTRACT NO. TRUST FUND AGREEMENT THIS TRUST FUND AGREEMENT (this "Agreement") is made and entered as of the 5th day of January, 2010, by and between the CITY OF FORT WORTH, TEXAS, a Texas home -rule municipality (the "C") and ALL STAR NORTH TEXAS BASKETBALL LOCAL ORGANIZING COMMITTEE, INC., a Texas nonprofit corporation (the "LOC"). RECITALS WHEREAS, pursuant to an application by the LOC, after considering through a highly competitive selection process one or more sites that are not located in the State of Texas, the National Basketball Association (the "NBA") formally selected the North Texas Region as the sole site for NBA All -Star 2010, including the following (collectively and each interchangeably, the "Event"): the 2010 NBA All -Star Game, 2010 NBA All -Star Jam Session, NBA All -Star Friday Night (which may include, without limitation, the NBA Rookie Challenge), NBA All -Star Saturday Night (which may include, without limitation, the Three -Point Shoot -Out and Slam Dunk Contest), team practices and shootarounds, and such other events, media events, musical performances, film shoots, rehearsals and any other events, competitions and activities related thereto or associated therewith as may be determined by the NBA; and WHEREAS, the NBA All -Star Game is held not more than one time in any year; and WHEREAS, the NBA and/or its affiliates, including without limitation NBA Entertainment, have entered into agreements (collectively, the "Event Sunnort Contract") with the LOC setting out representations and assurances by the LOC in connection with the selection of the North Texas Region for the location of the Event; and WHEREAS, TEx. REv. Civ. STAT. art. 5190.14, § 5A (as amended, the "Act") authorizes the Texas Comptroller of Public Accounts (the "Comptroller") to establish the Major Events Trust Fund (as defined in the Act) for the Event (the "Fund"); and WHEREAS, the Comptroller determined under Subsection (b) of the Act that 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 directly attributable to the preparation for and presentation of the Event is $646,340.00 (the "City Increment"); and WHEREAS, in consultation with the NBA and various governmental authorities, the City and the LOC have jointly prepared the plan attached hereto as Exhibit "A" (the "Event Plan"), which identifies the incremental staffing to be provided by the City for the provision of incremental public safety, incremental emergency medical, incremental emergency management, incremental crowd and traffic control, and other incremental City services necessary for the Event; and WHEREAS, the Event Plan contains a budget for all direct incremental costs to be incurred by the City in connection with implementation of the Event Plan (the "City Budget"); and OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX WHEREAS, the City and the LOC desire to enter into this Agreement to set forth the rights and obligations of the parties to take required actions under the Act and to fulfill obligations under the Event Support Contract; and WHEREAS, by Resolution No. 3513-08-2007 adopted on August 14, 2007, the City Council of the City 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: Section 1. Term. This Agreement shall remain in full force and effect until the later of- (i) December 31, 2010, or (ii) such date as all funds have been disbursed from the Fund pursuant to the Act. Section 2. Implementation of Event Plan. The City and the LOC hereby approve the Event Plan. The City will implement the Event Plan for the Event and will provide all services identified in the Event Plan in accordance therewith. Section 3. Reimbursement of Citv Costs. The term "City Costs" means all direct incremental costs actually incurred by the City in connection with incremental City services provided for the Event in accordance with the Event Plan. To provide funding for purposes eligible under the Act, not later than February 5, 2010, the City will remit $25,000.00 to the Comptroller for deposit into the Fund (the "City Remittance"). If the City Costs exceed the amount of the City Remittance, not later than the 90th day after the last day of the Event, the City will remit to the Comptroller for deposit into the Fund an additional amount equal to the difference between the City Costs and the City Remittance. Upon deposit into the Fund, such additional remittance to the Comptroller will be deemed part of the City Remittance. Notwithstanding anything herein to the contrary, the City shall have no obligation to remit to the Comptroller for deposit into the Fund a total amount in excess of the City Increment. The City will be reimbursed for the City Costs from the Fund on a first -priority basis up to the amount of the City Remittance. If the City Costs exceed the amount of the City Increment, the City will be reimbursed for the difference between the City Costs and the City Increment from the Fund to the extent of available State tax revenues deposited in accordance with Subsection (f) of the Act into the Fund as a consequence of the City Remittance. Section 4. Force Maieure. The term "Force Maieure" means acts of public enemy, terrorism, riot, mob violence, explosion, fire, tornado, flood or other natural disaster occurring in Dallas County or Tarrant County, Texas during the Event. If due to a Force Majeure event the City actually incurs additional (i.e., above and beyond those contemplated in the Event Plan) direct incremental costs in connection with incremental City services provided for the Event, such costs shall be deemed City Costs. Section 5. Resbonsibilities and Authorizations Concerning the Fund. The City will deal with the Comptroller with respect to: (i) requests for reimbursement from the Fund for the City -2- Costs up to the amount of the City Remittance; and (ii) disbursements from the Fund in connection with any such requests. With respect to all other sums deposited into the Fund, the City hereby authorizes, directs and designates the LOC to deal with the Comptroller with respect to: (a) requests for reimbursement from the Fund for purposes eligible under the Act; and (b) disbursements from the Fund in connection with any such requests. The City agrees that this authorization, direction and designation shall constitute the prior approval of the City, as an endorsing municipality, for disbursements from the Fund, in satisfaction of the requirements of the Act. Section 6. Dispute Resolution Procedure for Citv Costs. Not later than 10 business days after the conclusion of the Event, the City will deliver to the LOC a written report certified by the City Auditor (the "Auditor's Report") that identifies the City Costs and compares, on an itemized basis, the City Costs to the City Budget. Within 10 business days after the LOC's receipt of the Auditor's Report (the "Dispute Notice Period"), the LOC will notify the City whether: (i) the LOC agrees with the City Costs as set forth in the Auditor's Report or (ii) the LOC in good faith disputes the City Costs as set forth in the Auditor's Report. If the LOC fails to provide the foregoing notice within the Dispute Notice Period, the City Costs set forth in the Auditor's Report will conclusively be deemed the City Costs. If the LOC timely notifies the City of the LOC's good faith dispute of the findings of the Auditor's Report (such notice being the "Dispute Notice"), the City and the LOC will negotiate in good faith to resolve such dispute. If the City and the LOC are unable to resolve such dispute within 21 days after the Dispute Notice, either party may elect, by written notice (the "Arbitration Election Notice") to the other party, to have the dispute conclusively determined by arbitration before a single arbitrator in accordance with the arbitration procedure set forth in Section 7 below. If an unresolved dispute exists between the City and the LOC regarding the amount of the City Costs, for purposes of the third sentence of Section 3 of this Agreement, not later than the 90th day after the last day of the Event, the City will remit the higher amount to the Comptroller for deposit into the Fund. Section 7. Limited Arbitration Procedure. For the 14-day period immediately after the Arbitration Election Notice, the City and the LOC will negotiate, in good faith, to select a mutually agreeable arbitrator. If the City and the LOC fail to agree on an arbitrator within such 14-day period, the LOC will, on behalf of the parties, promptly request the American Arbitration Association (the "AAA") to appoint an arbitrator for the purposes set forth herein. The AAA will be instructed to appoint, as arbitrator, an individual with the following qualifications: a certified public accountant who has been active in practice on a full-time basis over the previous 10 years in Tarrant County, Texas, and has never been a direct or indirect employee, affiliate or agent of and has never had a material financial dependence upon either the City or the LOC or the NBA or Dallas Basketball Limited or Center Operating Company. The AAA will be instructed to appoint such arbitrator (i) in accordance with the AAA's standard procedures governing the selection of an arbitrator on behalf of arbitrating parties and (ii) within 20 days after the LOC's request therefor. The AAA's selection of arbitrator will be binding upon the City and the LOC. The arbitrator shall be and remain at all times neutral and wholly impartial, and upon written request by either party, will provide the parties with a statement that the arbitrator can and will decide the dispute impartially. The arbitrator must meet the qualifications and adhere to the standards of TEx. CIV. PRAC. & REM. CODE §§ 154.052 and 154.053. The arbitration will occur in Fort Worth, Texas. Within 10 days after the date the arbitrator is appointed, the arbitrator will notify the parties in writing of the date, time and place of the -3- arbitration hearing. The arbitrator will render his or her decision as to the amount of the City Costs within 30 days after the date of appointment. The arbitrator will select either the amount set forth in the Auditor's Report or the amount set forth in the City Budget as the one that, in the arbitrator's reasonable and professional judgment, more accurately reflects the direct incremental costs actually incurred by the City in connection with incremental City services provided for the Event in accordance with the Event Plan. The arbitrator's decision will be final and binding upon the parties. The LOC will pay the fees of the arbitrator if the arbitrator's decision selects the amount set forth in the Auditor's Report. The City will pay the fees of the arbitrator if the arbitrator's decision selects the amount set forth in the City Budget. The City shall not be required to pay the LOC's attorneys' fees and expenses related to an arbitration in accordance with this Section nor shall the LOC be required to pay the City's attorneys' fees and expenses related to an arbitration in accordance with this Section. Section 8. 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. Section 9. Governine Law. The Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, without regard to conflict of laws principles. Tarrant County, Texas shall be the exclusive venue for suit on or in respect of this Agreement. The parties hereto each. irrevocably agrees that any legal proceeding in respect of this Agreement shall be brought in the district courts of Tarrant County, Texas, or the United States District Court for the Northern District of Texas, Fort Worth Division and irrevocably submits to the jurisdiction of such courts. Section 10. Non -Exclusive Remedies. Except as otherwise provided herein, 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 which 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. Section 11. Immunity. By executing this Agreement, the City is unconditionally and irrevocably waiving its immunity from suit solely for the purpose of allowing enforcement of this Agreement, if necessary, with the specific understanding that the City is not otherwise surrendering or waiving any of its governmental powers or immunities. In the event of a breach or threatened breach of this Agreement by the City, the LOC has the right to pursue all available legal remedies, including mandamus, specific performance and/or injunction against the City ordering it to abide by and perform the terms of this Agreement. Section 12. Mutual Waiver of Certain Damag_ es. THE CITY AND THE LOC EACH HEREBY EXPRESSLY, IRREVOCABLY, FULLY AND FOREVER RELEASES, WAIVES -4- AND RELINQUISHES ANY AND ALL RIGHT TO RECEIVE PUNITIVE, EXEMPLARY AND CONSEQUENTIAL DAMAGES FROM THE OTHER (OR ANY PAST, PRESENT OR FUTURE BOARD MEMBER, TRUSTEE, DIRECTOR, OFFICER, EMPLOYEE, AGENT, REPRESENTATIVE, OR ADVISOR OF THE OTHER) IN ANY CLAIM, DEMAND, ACTION, SUIT, PROCEEDING OR CAUSE OF ACTION IN WHICH THE LOC AND THE CITY ARE PARTIES, WHICH IN ANY WAY (DIRECTLY OR INDIRECTLY) ARISES OUT OF, RESULTS FROM OR RELATES TO ANY OF THE FOLLOWING, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL BASIS: THIS AGREEMENT; ANY PAST, PRESENT OR FUTURE ACT, OMISSION, CONDUCT OR ACTIVITY WITH RESPECT TO THIS AGREEMENT; ANY TRANSACTION, EVENT OR OCCURRENCE CONTEMPLATED BY THIS AGREEMENT; THE PERFORMANCE OF ANY OBLIGATION OR THE EXERCISE OF ANY RIGHT UNDER THIS AGREEMENT; OR THE ENFORCEMENT OF THIS AGREEMENT. Section 13. Time of the Essence. Time is of the essence with respect to the obligations of the Parties to this Agreement. However, if a date specified or computed under this Agreement for the performance of an obligation by any party, or for the occurrence of any event provided herein, shall be a Saturday, Sunday or "legal holiday" (defined for purposes hereof as any holiday observed by the City), then the date of such performance or occurrence shall automatically be extended to the next calendar day that is not a Saturday, Sunday or legal holiday. Section 14. 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. Section 15. 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. If to the City: City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Attention: Dale Fisseler, City Manager -5- with a copy to: City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Attention: David Yett, City Attorney If to the LOC: All Star North Texas Basketball Local Organizing Committee, Inc. 2909 Taylor Street Dallas, Texas 75226 Attention: Terdema Ussery, President with copy to: Winstead PC 5400 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 Attention: Denis C. Braham, Chairman and CEO Section 16. Parties in Interest. The terms of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their permitted successors and assigns. This Agreement may not be assigned by the City. The LOC may not assign this Agreement but may collaterally assign and/or pledge its interest in this Agreement to secure the obligations of any credit facility of the LOC. Nothing in this Agreement, whether express or implied, shall be constructed to give any person or entity (other than the parties hereto and their permitted successors and assigns) any legal or equitable right, remedy or claim under or in respect of any terms or provisions contained in this Agreement or any standing or authority to enforce the terms and provisions of this Agreement. Section 17. General. Terms with initial capital letters are defined terms. Words or phrases in quotations marks indicate the definition of a term. A defined term has the same meaning throughout this Agreement, may appear in this Agreement before its definition and applies to all grammatical variations of the term also shown with initial capital letters. The masculine, feminine and neuter genders used in this Agreement each includes the masculine, feminine and neuter genders, and whenever the singular number is used, the same shall include the plural where appropriate, and vice versa. Wherever the term "including" or a similar term is used in this Agreement, it shall be interpreted to mean "including, without limitation." The words "shall" and "will' as used in this Agreement have the same meaning and are mandatory, and the word "may" is permissive. The headings used in this Agreement are included for reference only and shall not be considered in interpreting, applying or enforcing this Agreement. This Agreement shall not be modified or amended in any manner except by a writing signed by all the parties hereto. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof. All prior negotiations, representations or agreements not expressly incorporated into this Agreement are hereby superseded and cancelled. The parties acknowledge and represent that this Agreement has been jointly drafted by the parties, that no provision of this Agreement will be interpreted or construed against any party solely because the party or its legal counsel drafted such provision and that each of them has read, understood and 10 approved the language and terms set forth herein. This Agreement may be executed in multiple counterparts, each of which shall constitute but one agreement. All signatures need not be on the same counterpart. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] -7- EXECUTED to be EFFECTIVE of the date first set out above. CITY OF FORT WORTH, TEXAS By: Name: %D Title: Naii AAer APPROVED AS TO FORM: By: Name: Pe�er vo ky Title: Sr. �SS/"Sfi-avt� Ct icy 477-ort)e y Attested by: & raw [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK Signature Page — Trust Fund Agreement OFFICIAL RECORD -8- CITY SECRETARY FT. NORTH, TX ALL STAR NORTH TEXAS BASKETBALL LOCAL ORGANIZING COMMITTEE, INC. ol� By: -- Terdema L Ussery II, President [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] OFFICIAL RECORD Signature Page — Trust Fund Agreement -9- CITY SECRETARY FT. WORTH, TX Exhibit "A" Event Plan [FOLLOWS THIS COVER PAGE] Exhibit "A" — Event Plan Cover Page 1031063v.6 Event Date Cooks Hospital 2/10/2010 Sergeant NBA Fit 2/11/2010 Sergeant NBA Fit 2/11/2010 Sergeant NBA Fit ) 2/11/2010 Sergeant I Billy Bob's (outside 2/14/2010 Sergeant ) Downtown area 2/10/2010 Sergeant I Downtown area I 2/11/2010 Sergeant Downtown area 2/12/2010 I meant I Downtown area 2/13/2010 Sergeant I Downtown area I 2/14/2010 1 Sergeant EOC Intel Unit I Traffic Unit I Gano Unit ) Contingency I Totals I 2010 NBA All -Star Game Fort Worth Police Budget # Ofcs- NBA Hours Rate T-o-ta-1-1 # Officers- FWPD Hours Rate Total 2 2 2 4 2 4 2 4 8 $49.25 $197.00 11 2 $32.83 $722.26 1 $39.96 $79.92 $49.25 $394.00 11 _ 4 $32.83 $1,444.52 1 4 $39.96 $159.84 $49.25 $394.00 1 J 4 $32.83 $1 444.52 _ f 4 $39.96 1159.84 $49.25 $39.4 00_ 11 4 32.83 $1,444.52 - 1 4 39.96 � 159.84 11 4 $32.83 $1,444.52 $39.96 $159.84 11 8 32.83 $2,889.04 1 8 139.96 $319.68 11 8 32.83 $2,889.04 1 8 39.96 $319.68 11 8 32.83 $2,889.04 1 8 39.96 $319.68 11 8 32.83 $2,889.04 1 8 39.96 $319.68 " 1,1 8 32.83 $2,889.04 1 8 E9.96 $319.68 8 $32.83 $262.64 10 _ $32.83 $656.60 $817.54 $26,000.00