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HomeMy WebLinkAboutContract 61609Trust FundEvent Support Contract with Feld Entertainment, Inc.Page 1 of 11 TRUST FUND EVENT SUPPORT CONTRACT This TRUST FUND EVENT SUPPORT CONTRACT (“Agreement”) is made and entered into by and between the CITY OF FORT WORTH (“City”), a home-rule municipality organized under the laws of the State of Texas and FELD ENTERTAINMENT, INC., a Foreign Profit Corporation on behalf of itself and its wholly owned subsidiary FELD MOTOR SPORTS, INC., (collectively the “Company”). RECITALS The Cityand Company herebyagree 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 2024 SuperMotocross World Championship Playoffs (“Event”), 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 Texas Motor Speedway to serve as the sole venue for the Event or the sole venue for the Event in a region composed of Texas and one or more adjoining states. C.Company engaged Angie Highland, of Highland Market Research (“Highland”) to prepare an Analysis of the Economic Impact of the Event for purposes of submitting to the Office of the Governor Economic Development and Tourism (“EDT”) to determine eligible Texas state tax revenues generated by the Event. D.Chapter 480 of the Texas Government Code, as amended (as it may be amended from time to time) (“Act”) authorizes the EDT to establish the Event Trust Fund (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. E.The EDT has 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 EDT, by letter to City dated April 25, 2024, has determined that the State will deposit an estimate amount of $850,089.00 of State funds into the Fund if matched by $136,015.00 in remittances by or on behalf of the City, for an estimated total Fund amount of $986,104.00. As an endorsing municipality under the Act, the City has or will remit $136,015.00 to the EDT for deposit into the Fund. Trust FundEvent Support Contract with Feld Entertainment, Inc.Page 2 of 11 G.The Act provides that the money in the Fund may be used for the payment of costs relating to the preparations necessary for conducting the Event and costs of conducting the Event (“Permissible Uses”). H.The obligations of the parties under the Agreement are set forth in Section 5, which the parties agree are, without limitation, necessary for the City to provide incremental services necessaryfor the Event as well as other costs necessaryfor City to host the Event and for Company to conduct the Event. 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 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 April 25, 2024, and shall remain in full force and effect until the later of (i) December 31, 2025, or (ii) the date as of which all funds have been disbursed inaccordance with the Act and with this Agreement, unless terminated earlier pursuant to the terms of this Agreement. 3. APPLICATION FOR EVENT TRUST FUND DISBURSEMENT. TheCityhas previously applied to the EDT for the creation of the Fund for the Event under the provisions of the Act. 4. TRUST FUND DEPOSIT. In consideration of Company’s selection of Texas Motor Speedway as the sole site for the Event, the City will remit a total of $136,015.00 for the Event to the EDT, as set forth in the April 25, 2024, letter that was issued by the EDT 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 Fund under the terms of the Act. The City Remittance plus the contributions by the State of Texas to the Fund in accordance with the Act shall be referred to herein as the “Total Fund Amount.” Trust FundEvent Support Contract with Feld Entertainment, Inc. Page 3 of 11 5. GENERAL OBLIGATIONS OF THE PARTIES. a. Company. (i) Company is obligated to hold and conduct the Event at Texas Motor Speedway, September 14, 2024. (ii) Company also agrees that the covenants and promises made in this Agreement, including, but not limited to, the Company’s expenses set forth in this Section are necessary to prepare for and conduct the Event. b. City. (i) The City is obligated to host the Event. (ii) The parties recognize that the Company is the Event expert and has the structure and mechanisms in place to properly and adequately perform the functions necessary to prepare for and conduct the Event. In addition to hosting the Event, the City’s obligation under this Agreement shall be to pay the Company for the necessary, reasonable, and actual expenses required to prepare for and conduct the Event as a means to reimburse the Company to help cover the costs of the Event, including in areas of which the City lacks expertise. These expenses may include, but are not limited to, the following: (A) Advertising and marketing promotions of the Events, including but not limited to, television and radio broadcast, published media, website, social media, billboards, printing and production costs; (B) Water for staff, event personnel and volunteers; (C) Cost of dirt used for the event, including delivery, installation and removal from event site; (D) Portable restrooms, trash receptacles; (E) Rental cost of facilities for the Event; (F) Rental cost of equipment for the Event; including but not limited to items such as, staging, seating, fencing, generators, light towers, message boards, gators and forklifts; (G) Staff and personnel hired or contracted specifically for operation and production of the Event; (H) Security, paramedics and ambulance service; (I) Shade (i.e. tents); (J) Lighting and sound; (K) Traffic planning and management; (L) Severe weather planning and mitigation; (M) Way-finding signage or staff; Trust FundEvent Support Contract with Feld Entertainment, Inc.Page 4 of 11 (N) Barricades; (O)Credentials; (P)Travel expenses, including lodging, rental car and airfare for persons directly related to the conduct of the event, provided they do not reside in the event market area; (Q)Food provided on-site to event participants that are directly related to the conduct of the event (i.e. staff and volunteers); and (R)Fire marshal; (S)Webcaster, streaming services; (T)Additional electrical needs for the event; and (U)Data and telecommunication services provided at the facility for the event. (iii)The Company shall provide invoices to the City for expenses incurred for the Event. The Company shall provide any supporting expense documentation as required by the City or as requested by the EDT to the full satisfaction of both the City and the EDT for the Event. The City will make payment(s) to the Company within thirty (30) business days after receipt of such payment from the EDT in accordance with the terms of this Agreement. The City will be responsible for dealing with the EDT with respect to disbursements from the Fund and distributing the Total Fund Amount in accordance with the terms of this Agreement. (iv)Any payments to the Company as set forth in this Agreement are limited to the maximum amount available from and approved for eventual distribution from the Fund established for the Event and must be eligible for payment by the Events Trust Fund program. Under no circumstances shall the City be obligated to Company for more than that maximum sum when received from the Fund for the Event. The Company shall not seek, and will not be entitled to, payment from the City for any costs not distributed by the EDT from the Fund established for the 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) calendar 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 City and Company. 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 the City has the absolute right to offset any amount owed to the City by Company against the Total Fund Amount and take immediate possession of such funds to satisfy all outstanding obligations. The City and Company acknowledge that any such offset Trust FundEvent Support Contract with Feld Entertainment, Inc.Page 5 of 11 shall not be construed as a distribution of Funds under this Agreement, but as payment by Company of funds owed to the City for application toward any outstanding obligations owed to the City. If the City exercises its right of offset, then Company hereby waives its right to receive any reimbursement or distribution from the Total Fund Amount under this Agreement that is subject to the offset amount. To the extent that any funds remain from the Total Fund Amount after the City applies the above-stated offset, then the City will distribute such funds in accordance with the terms of this Agreement. If the offset is not sufficient to discharge all of Company’s outstanding obligations to the City, Company will continue to be obligated to pay the City all amounts remaining after application of the offset, and the City will retain all legal rights and remedies available to it to collect such amounts. 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 Texas Motor Speedway. Company will also cooperate with the City in documenting costs incurred by Company for the Event to evidence the Permissible Uses. Upon City’s distribution to Company from the Total Fund Amount as set forth in Section 5 above, Company will contemporaneously pay the City the following: (1) an amount equal to the City Remittance. 7. DOCUMENTATION. Company hereby certifies and warrants that all documentation submitted to the City shall fully and accurately represent the actual costs incurred by Company in hosting the Event and shall be consistent with the Permissible Uses under the Act. Company shall be liable to the City for any damages resulting from a breach by Company 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 Trust FundEvent Support Contract with Feld Entertainment, Inc. Page 6 of 11 Company must cure such default within thirty (30) calendar days after receiving notice from City, unless otherwise agreed to in writing by the parties. If the Event is cancelled for any reason, and cannot be rescheduled by the parties within a reasonable time for the purpose of this Agreement, then this Agreement will terminate immediately and the City shall not be held responsible or liable for its obligations hereunder. 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: FELD ENTERTAINMENT, INC.: City of Fort Worth Attn: Director, Public Events Dept. Attn: Michael Ferrazza, VP, Event Marketing & Sales 1000 Throckmorton 800 Feld Way Fort Worth, TX 76102 Palmetto, FL, 34221 with copies to: with a copy to: Mick Jacobsen, Corporate Counsel, (mjacobsen@feldinc.com) 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. Trust FundEvent Support Contract with Feld Entertainment, Inc.Page 7 of 11 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, governmental orders or restrictions, 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. Trust FundEvent Support Contract with Feld Entertainment, Inc.Page 8 of 11 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 between the parties 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 ANDAGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEY’S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING,BUTNOTLIMITED TO, THOSE FOR PROPERTYOR MONETARY LOSS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND 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 NONPERFORMANCE OF THIS AGREEMENT. b.IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE EITHER PARTY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, COMPANY, ON NOTICE FROM THE INDEMNIFIED PARTY, THE INDEMNIFYING PARTY SHALL DEFEND SUCH ACTION OR PROCEEDING, AT SUCH PARTY’S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY Trust FundEvent Support Contract with Feld Entertainment, Inc.Page 9 of 11 SATISFACTORY TO THE INDEMNIFIED PARTY. 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.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 the Event, as outlined in this Agreement, including, but not limited to, all necessary books, papers, documents, records, and personnel related to the invoices submitted pursuant to Section 5, (collectively “Records”) in order to determine compliance with this Agreement. The Company shall make all Records available to City at 200 Texas Street, Fort Worth, Texas or at another location inCityacceptable to both parties within thirty (30) days after notice by City and shall otherwise cooperate fully, with City during any such audit. Notwithstanding anything to the contrary herein, this section shall survive expiration or earlier termination of this Agreement. 25. ASSIGNMENT. Neither partyhereto 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, the parties agents affirm that they are authorized to execute this Agreement and that all representations made herein with regard to each respective parties 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. Trust FundEvent Support Contract with Feld Entertainment, Inc.Page 10 of 11 28. PROTECTION OF PROPRIETARY/CONFIDENTIAL INFORMATION To the extent allowed by law, any non-public information that the Company furnishes, directly or indirectly, to the City, including, without limitation, information in tangible or intangible form relating to and/or including trademarked, copyrighted or otherwise proprietary information of either party, financial and marketing information, negotiation strategy, business plans, contractual terms, budgets, mailing and customer lists, attendance figures, sales volume, customer data, current or prospective relationships with vendors or independent contractors, business policies or practices, and information received from others (“Confidential Information”) shall not be disclosed, copied, reproduced or otherwise made available to any other person or entity without the consent of the Company except as required under court order, The Public Information Act (Texas Government Code, Chapter 552) or the Freedom of Information Act (5 U.S.C. Section 552). The City agrees to use its best efforts to maintain the confidentiality of the Confidential Information and shall not be liable for the disclosure of the Confidential Information which, after notice to and consultation with the Company, the City determines may not be lawfully withheld, provided the Company has been given a reasonable opportunity to seek a court order to enjoin disclosure. EXECUTED to be EFFECTIVE as of the date set forth Section 2 of this Agreement: CITY OF FORT WORTH: FELD ENTERTAINMENT, INC. and FELD MOTOR SPORTS, INC. By: William �o�nson (J n 27, 2024 13:41 CDT) William Johnson Assistant City Manager Date: ___________ _ APPROVED AS TO FORM AND LEGALITY: �� Taylor Paris Assistant City Attorney ATTEST: ri � Jannette Goodall City Secretary Contract Authorization: City Council Resolution Number 3513-08-2007 CITY OF FORT WORTH USE ONLY Contract Compliance Manager: t/i V ing & Sales Date: �/X � ,;io.;i 't By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Christopher Roden Sr. Management Analyst Contract Authorization: City Council Resolution Number 3513-08-2007 Trust Fund Event Support Contract with Feld Entertainment, Inc. Page 11 of!!